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Full text of "United States Court of Appeals For the Ninth Circuit"

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TRANSCRIPT OF RECORD. 



UNITED STATES CIRCUIT COURT OF APPEALS 

NINTH CIRCUIT 

OCTOBER, term:, 1891. 

AMERICAN BARKENTINE PORTLAND, 

Eespondenl and Appellant, 

VS. 

PACIFIC COAST STEAMSHIP COMPANY, 

Libellant and Appellee. 



APPEAL FROM THE DISTRICT COURT OF THE UNITED 8TATES FOR THE 
NORTHERN DISTRICT OF CALIFORNIA. 



^ 



FILLED arrr'TrrriiTTTrTt tai is»i 



m THE UNITED STATES CIRCUIT COURT OF APPEALS. 



AMERICAN BARKENTINE POKTLAND, 

Appellant, 

vs. 

PACIFIC COAST STEAMSHIP COMPANY, 

Appellee. 



APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE 
NORTHERN DISTRICT OF CALIFORNIA. 



INDEX. 

Original. Print. 

Assignment of errors h 1 

Appeal 1 1 

Libel 7 3 

Libellant's stipulation for costs 12 5 

Claim of A. M. Simpson et al 14 6 

Claimant's stipulation for costs 15 6 

Monition l? 7 

Proclamation 20 8 

Answer 21 8 

Order of consolidation 27 1 1 

Trial 28 22 

Evidence for respondent 32 14 

Testimony of Robert Bressen 32 14 

Testimony of J. P. Bennett 48 21 

Testimony of Robert Bressen (recalled) 55 24 

Testimony of James Donelly . . 56 24 

Evidence for lil)ellant 60 26 

Testimony of G. Debney 60 26 

Testimony of Cnarles Stephens 86 38 

Testimony of Charles Doran 96 43 

Evidence for respondent '07 47 

Deposition of Abraham Isaacs 107 4/ 

Deposition of James Donelly 120 52 

Deposition of Edward Peterson 144 63 

Deposition of Joseph P. Bennett 185 i9 

Deposition of James Daly 204 86 

Deposition of. Andrew Parks 21'.l 93 



II INDEX. 

Evidence for libellant 229 97 

Deposition of Daniel Mullaue 229 97 

Argument , 264 112 

Opinion of Judge Hoffman 266 112 

Interlocutory decree 276 116 

Report of commissioner as to damages 277 1 17 

Motion to confirm report 477 118 

Exceptions to report 478 1 19 

Order confirming report in part 481 120 

Decree 4S4 120 

Costs 486 121 

Substitution of claimant 492 123 

Notice of appeal 493 124 

Accruing costs . . . . 495 124 

Certificate of clerk 496 124 

Stipulation as to bond on appeal 497 125 

Bond on appeal 498 125 

Certificate of clerk 500 126 

Stipulation as to printing record 501 126 ■ 



PACIFIC COASr SfEA MSUIl' COMPANY VS. AMEIUCAN BAKKENTINE rORTLANU. 



h la the District Court of the United States for the Northern 

District of California. 
In Admiralty. 
Pacific Coast Steamship Cobepany, Libellant, 

vs. 
American Baekentine Portland, Eespondent. 

Assignment of Errors on Appeal. 

Now come A. M. Simpson, Samuel Perkins, A. Y. Trask and John 
Kruse, and A. W. Simpson and George P. Simpson executors of last 
will of Robert W. Simpson, claimants of Barkentine Portland and 
appellants herein, and assign as errors in the decision and judgment 
of the District Court of the United States for the Northern District 
of California. 

1st. That the evidence discloses that the steamship State of Cali- 
fornia was wholly in fault for the collision complained of and that 
the libel herein should have been dismissed. 

2nd. That the evidence discloses that the steamship State of Cali- 
fornia was in fault for the collision complained of, and that the 
utmost damages which should have been allowed was one- half the 
damages suffered by the State of California. 

3rd. The Court erred in awarding interest on damages. 

E. W. McGRAW, 
CHAS. PAGE, 
Procfors for Claimants and Appellants. 
[Endorsed :] Filed August 12, 1891. 

Southard Hoffman, Clerk. 



1 lathe Circuit Court of Appeals of the United States, Ninth 

Circuit. 
In Admiralty. 
The Pacific Coast Steamship Company, Libellant, 

vs. 
The American Barkentine Portland, Eespondent. 
To the Honorable the Circuit Court of Appeals of the United States, 
Ninth Circuit: 

The Appeal of A. M. Simpson, Samuel Perkins, A. Y. Trask, 
John Kruse and A. W. Simpson and George P. Simpson respect- 
fully showeth : 

That on or about the 13th day of September, A. d. 1886, the 
above-named libellant exhibited its libel in the District Court of the 
United States for the District of California against tbe American 
barkentine Portland praying judgment against said vessel for cer- 
tain damages alleged to have been suffered by the steamship State 
of California by reason of a collision between said steamship and 
said barkentine, and praying that said barkentine might be con- 
demned and sold to pay said damages. That process issued out of 
said Court under and upon which said barkentine was arrested, 
whereupon A. M. Simpson, R. W. Simpson, Samuel Perkins, A. Y. 
Trask and John Kruse interposed their claim as owners of said 
barkentine, and entered into stipulation in duo form of law for the 



Z PACIFIC COAST SIEAMSHIP COMPANY VS, 

release thereof from arrest, and said barkentiue was thereupon re- 
leased. That afterwards, to wit, on or about the 9th day of 

2 December, a. d. 188G, the said claimants filed their joint 
answer to said libel, wherein they claimed and averred that 

the said collision occurred solely throup;h the negligence and care- 
lessness of the steamship State of California and not through the 
negligence or carelessness of said barkentiue Portland, and prayed 
that said libel be dismissed with costs, as by said libel and said 
answer will more fully appear. 

That said cause came on to be heard before the Honorable Ogden 
Hoffman, Judge of said District Court, on or about the 2Sth day of 
July, A. D. 1887, upon the depositions and proofs taken in said cause 
and the testimony and proofs adduced by the respective parties, and 
and afterward on or about the 2od day of Aug., a. d. 1889, the said 
cause came on for argument before the said Judge, and afterward 
the said Judge having advised thereon made a decree in said cause 
whereby it was decreed that libellants in said cause r-ecovor against said 
barkentine Portland the eutiredamage suifered by the steamship State 
of California by reason of the said collision, under which decree a 
reference was had to the clerk of said Court, who afterwards and on 
the 31st day of March, a. d. 1891, reported to the Court the amount 
of damage suffered by the State of California; that motion for con- 
firmation of said report camo on to be heard before the Hon. E. M. 
Boss then sitting as Judge of said Court on the 15th day of July, 
A. D. 1891, and saici Judge confii-med said report in part, and 

3 foun<l the damages suffered by the State of California to be 
811,876.05 with interest and costs, and afterwards on the 23d 

day of July, A. D. 1891, a final decree was entered in said cause that 
libellant recover said sum of §15,1(55.65 and costs. 

Tiiat on the 7tli day of July, 1891, K. W. Simpson, one of said 
claimants, died, and on Ihe 21st day of July, 1891, said Court duly 
made and entered an order substituting A. W. Simpson and George 
P. Simpson, executor of the last will of E. W. Simpson, in place of 
E. W. Simpson as party claimant in said cause. 

And these appellants are advised and insist that (he said decrees 
are erroneous inasmuch as the said collision occurred through the 
fault and negligence of said steamship State of California, and not 
through the fault or negligence of the barkentine Portland, and said 
libellants were not entitled to recover any damages. 

And tliese appellants for these and other reasons appeal from the 
whole of said decree in favor of libellants to the next Circuit Court 
of Appeals for the Ninth Circuit to be held iu said Circuit, and on 
the said appeal they intend to have said cause heard anew in the 
said Circuit Court of Appeals on the pleadings and proofs in the 
District Court and other jn-oofs to be introduced in said Circuit 
Court of Ap|)eals, and they pray that the said decree and every part 
thereof may be reversed with costs or such other decrees thereupon 
made as to the said Circuit Court of Appeals shall seem just, and 
that the said appellees be coudemnetl to pay to these appellants 
their costs and damages in the premises. 

E. W. McGRAW, 
CHAS. PAGE, 

4 Proctors for Appellants. 



AMERICAN BAEKENTINE PORTLAND. 6 

[Endorsed n Eeceived copy of withiu api.eal this 8tb day 
of August, 1891. 

T. I. BERGIN, 
Prodor for LibeUanls. 
Filed August 8tb, 1891. 

South AID Hoffman, Clerl:. 



7 lu the District Court of the United States for the District of 

California, 
lu Admiralty. 
Pacific Coast Steamship Company, Libeliant, "1 
vs. I 

The American Babkentine Portland, her ! 
tackle, apparel, boats and furniture, and j 
against all persons lawfully intervening for , 
tlaeir interest therein. • J 

Tu the Honorable Ogden Hoffman, Judge of the District Court of the 
United States for the District of California: 
The libel of the Pacific Coast Steamship Company owner of 
the American steamship State of California against the American 
barkeutine Portland, her tackle, apparel, boats and furniture and 
against all persons lawfully intervening for their interest in the aame 
in a cause of collision, civil and maritime, allege as follows: 

First. — That at each and all the times herein mentioned, 

8 the Libeliant, the Pacific Coast Steamship Company, was a 
corporation duly incorporated, organized and doing business 

as such corporation under the laws of the State of California, and 
under the corporate name of Pacific Coast Steamship Company. 

That at each and all of the times herein mentioned the said libel- 
iant was the sole owner of the American steamship, called The 
State of California, her engines, boilers, machinery, boats, tackle, 
apparel and furniture, and that said steamship has heretofore been 
engaged in voyaging between San Francisco, California, and Port- 
land, Oregon. 

Second. — That in the month of April in the year 1886, the said 
steamship, being tight, staunch, well officered and manned, and with 
good, proper and well-conditioned machinery, and well and prop- 
erly provided, apparelled and equipped, with Gerald Debney in 
command as master, departed from the port of Portland, Oregon, 
with passengers and cargo, bound on a voyage to San Francisco, in 
the State of California. 

Third. — That during said voyage, to wit: on the moi'uing of April 

7, 1886, about four o'clock, the said steamship being then on the 

high seas aud off the heads of the harbor of said San Francisco, 

was voyaging toward said harbor, with the captain and one of the 

mates on deck, and a full watch of seamen on deck, and pro- 

9 per aud efficient lookouts, and with all regulation lights 
properly set and in good order and burning brightly aud 

that the said steamship, without any fault or negligence on her part, 
or on the part of those in charge of her, was carelessly aud negli- 
gently run into by said barkeutine Portland, the said barkentiuo 
striking said steamship on her starboard side a little forward of 
amidships. 



4 PACIFIC COAST STEAMSHIP COMPANY VS. 

That said collision was caused by the negligence and carelessness 
of those in charge of said barkeatine Portland in this, that the 
port side light of said barkentine had been taken down a few min- 
utes previous to the collision in question and from the relative 
positions of said steamship and said barkentine the starboard side 
light of said barkentine was not visible to those in charge of the 
said steamship previous to said collision; and also in this, that said 
barkentine changed her course a few minutes previous to said col- 
lision, when she was in duty bound not to change her course at all; 
and also in this, that said batkentine with full opportunity so to do 
failed to exliibit any lighted torch to warn said steamship of her 
presence and proximity. 

Fourth. — That by said collision said steamship was cut down 
below the water line, and a large hole was knocked in her starboard 
side, and one of her boats was destroyed, and one of the life rafts 
was destroyed, and other injui'ies were inflicted upon said steam- 
ship; and that the damage inflicted by said collision upon said 
10 steamship amounted to the sum of and eight thousand eight 
hundred and eighty dollars. 

Fifth.- — That the said barkentine Portland is now lying in the 
port of San Francisco and within the jui-isdiction of this Honorable 
Court. 

Sixth. — That all and singular the premises are true and within 
the admiralty and maritime jurisdiction of the United States and 
of this Honorable Court. 

Wherefore, the libellant pi^ays that process in due form of law, 
according the course of this Honorable Court, in cases of admiralty 
and maritime jurisdiction may issue against the said barkentine 
Portland, her tackle, apparel and furniture, and that all persons 
claiming any right, title, or interest in the said barkentine may be 
cited to appear and answer upon oath all and singular the matters 
aforesaid; and that this Honorable Court Avould be pleased to decree 
to libellant the payment of its aforesaid damages with interest and 
costs, and that the said barkentine Portland may be condemned 
and sold to pay the same; and that the libellant may have such 
other or further relief or both, in the premises, as in law and justice 
it may be entitled to. 

Pacific Coast S. S. Co. 
By Chas. Goodall, Presnt. 

McAllister & bergin, 

Proctors for Lihellants. 



11 District of California — ss. 

Charles Goodall of said District being duly sworn, deposes and 
says, that he has read the foregoing libel and knows the contents 
thereof, that the same is true of his own knowledge. 

Deponent further says that he is an officer of the Pacific Coast 
Steamship Company, the within named corporation, to wit, the 
president thereof, and is duly authorized by said corporation to file 
the foregoing libel on its behalf. 

Chas. Goodall. 



AJIEIICAN BAKKINTINE POEILAKD. 5 

Subscribed and sworn to before me this 13tli day of September, 
.1886. 

Southard Hoffman, 
Comiss. U. S. Cir. Ct. N. D. Cal. 
[Endorsed:] Filed September 13, 1886. 

SouTHAED Hoffman, Clerh. 



12 No. 4026. 

United States of America. 
District Court of the United States for the Northern District of 

California. 
"Whereas, a libel was filed in this Court on the 13th day of Sep- 
tember, in the year of our Lord one thousand eight hundred and 
eighty-six, by Pacific Coast Steamship Company against the Ameri- 
can barkentine Portland, her tackle, etc., for reasons and causes 
in said libel mentioned, and the said Pacific Coast Steamship 
Company and Charles Goodall and Edwin Goodall, his sureties, par- 
ties hereto, hereby consenting and agreeing that in case of de- 
fault or contumacy on the part of the said libellant or his sureties, 
execution may issue against their goods, chattels and lands for the 
sum of five hundred dollars. 

Now, therefore, it is hereby stipulated and agreed for the benefit 
of whom it may concern that the undersigned shall be, and each of 
them is, bound in the sum of five hundred dollars, conditioned the 
libellant above-named shall pay all costs and charges that may be 
awarded against them in any decree by this Court, or, in case of 
appeal, by the Appellate Court. 

Pacific Coast S. S. Co., 
By Charles Goodall, Presdt, 
Chas, Goodall, 
Edwin Goodall. 
Taken and acknowledged this 13th day of September, 1886, 
before me. 

Southard Hoffman, 
Commissioner United States Circuit Court, Northern District of Cali- 
fornia. 



13 District of California — ss. 

Charles Goodall and Edwin Goodall, parties to the above 
stipulation, being duly sworn, do depose, each for himself, 
that he is worth the sum of five hundred dollars over and above all 
his debts and liabilities. 

Chas. Goodall, 
Edwin Goodall. 
Sworn to this 13th day of September, 1886, before me. 

Southard Hoffman, 
Gommissioner United States Circuit Coixrt, Northern District of Cali- 
fornia. 
Filed the 13th day of September, 1886. 

Southapd Hoffman, Clerk. 



b PACIFIC COAST STEAMSHIP COMPANY VS. 

14 la the District Court of the United States for tlie District of 

California. 
In Admiralty. 
To the Honorable Ogden Hoffman, Judge of the District Court of the 
United States for the District of California: 
The claim of A. M. Simpsou, R. AV. Simpson, Samuel Perkins, 
A. Y. Trask and John Kruse, as owners of the barkentine Portland, 
libelled by Pacific Coast Steamship Company. A. M. Simpsou, E. 
W. Simpson, Samuel Perkins, A. W. Trask and John Kruse, owners 
of the barkentine Portland, her boats, tackle, apparel and furniture, 
intervening for their interest in the said barkentine Portland, her 
boats, tackle, apparel and furniture, appear before this Honorable 
Court and claim the said barkentine, her boats, tackle, apparel and 
furniture, and state that they are the true and bona fide owners 
thereof and that no person is the owner thereof. And therefore, 
the said claimants pray that the Honorable Court will be pleased to 
decree restitution of said barkentine. 

R. W. Simpson. 
Subscribed and sworn to before me this 14th Sept., 188(3. 

J. S. Manley, 
Commissioner U. S. Circuit Court, Northern District of California. 
[Endorsed:] Filed September 14th, 188G. 

SouTHAED Hoffman, Clerk. 
By J. S. Manley, Deputy Clerk. 



15 No. 4026. 

United States of America. 
District Court of the United States for the Northern District of 

California. 
Whereas, a libel was filed in this Court on the 13th day of Sep- 
tember, in the year of our Lord, one thousand eight hundred and 
eighty-six, by the Pacific Coast Steamship Company against the 
barkentine Portland, her tackle, etc., for reasons and causes in the 
said libel mentioned, and whereas on the 14th day of Sept., 1886, 
the said barkentine was claimed, A. W. Simpson, R. W. Simpsou, 
Samuel Perkins, A. Y. Trask and John Kruse, as owners, and the 
said claimants and J. S. Doe and C. Josselyn, his sureties, parties 
hereto, hereby consenting and agreeing that in case of default or 
contumac}' on the part of the said claimants or his sureties, execu- 
tion may issue against their goods, chattels and lauds for the sum 
of five hundred dollars. 

Now, therefore, it is hereby stipulated and agreed for the benefit 
of whom it may concern, that the undersigned shall be, aad each of 
them is, bound in the sum of five hundred dollars, conditioned the 
claimants above named shall pay all costs and charges that may be 
awarded against them in any decree by this Court, or, in case of 
appeal, by the appellate Court. 

E. "W. Simpson, 

For Self and Co-owners. 
C. J. Josselyn, 
J. S. Doe. 



AMERICAN BARKENTINE PORTLAND. 



Taken and acknowledged this 14tli day of September, 1886, be- 
fore me, 

J. S. Manley, 
16 Commissioner United States Circuit Court, Northern District of 
California. 



Northern District of California — ss. 

J. S. Doe and C. Josselyn, parties to the above stipulation, being 
duly swora, do depose and say, each for himself, that he is worth 
the snm of five hundred dollars, over and above all his debts and 
liabilities. 

C. Josselyn, 
J. S. Doe. 
Sworn to this 14th day of September, 1886, before me, 

J. S. Manley, 
Coinmissioner United States Circuit Court, Northern District of 
California. 
Filed this 14th day of September, 1886. 

Southard Hoffman, Clerk. 
By J. S. Manley, Deputy Clerk. 



17 Northern District of California — ?s. 

The President of the United States of America, to the Blarshal of the 
P -, United States for the Northern District of California, Greeting: 
PEAL.J •^jjgj.eas, a libel hath been tiled in the District Court 
of the United States for the Northern District of California, on the 
13th day of Se])tember, in the year of our Lord one thousand eight 
hundred and eighty-six by the Pacific Coast Steamship Company 
against the American barkentine Portland, her tackle, apparel, boats 
and furniture for the reasons and causes in the said libel mentioned, 
and praying the usual process and monition of the said Court in that 
behalf to be made, and that all persons interested in the said bark- 
entine or vessel, her tackle, etc., may be cited in general and special 
to answer the premises, and all proceedings being had, that the said 
barkentine or vessel, her tackle, etc., may for the causes in the said 
libel mentioned, be condemned and sold to pay the demands of the 
Hbellant. 

You are therefore hereby commanded to attach the said barken- 
tine or vessel, her tackle, etc., and to obtain the same in your cus- 
tody until the further order of the Court respecting the same, and 
to give due notice to all persons claiming the same, or knowing or 
having anything to say why the same should not be condemned and 
sold pursuant to the prayer of the said libel, that they be and 
appear before the said Court, to be held in and for the North- 

18 ern District of California, on the 28th day of September, 
a. d., 1886, at eleven o'clock in the forenoon of the same day, 

if that day shall be a day of jurisdiction, otherwise on the next day 
of jurisdiction thereafter, then and there to interpose a claim for 
the same, and to make their allegations on that behalf. And what 
you shall have done in the premises do you then and there make 
return thereof, together with this writ. 

Witness, the Hon. Ogden Hoffman, Judge of said Court at the 



8 PACIFIC COAST STEAMSHIP COMPANY VS. 

city of San Francisco, in the Northern District of California, this 
13th day of September, in the year of our Lord, one thousand 
eight hundred and eighty-six, and of our independence the one 
hundred and eleventh. 

Southard Hoffman, Clerk. 
Messes. McAllister & Beegin, 

Proclors fur Lihellant. 
[Endorsed :] 

In obedience to the within monition, I attached the barken tine 
Portland therein described, on the 14th day of September, 188(3, 
and have given due notice to all persons claiming tlie same that this 
Court will on the 28th day of September, 1886, (if that day should 
be a day of jurisdiction, if not, on the next day of jurisdiction 
thereafter) proceed to the trial and condemnation thereof, should no 
claim be interposed for the same. 

J. C. FKANKS, V. S. Marshal. 
By W. L. McEwEN, Deputy. 
Dated Sept. 14th, 1886. 

Filed September 28th, 1886. 
19 Southard Hoffman, Clerh. 

By J. S. Manley, Deputy Clerk. 



At a stated term of the District Court of the United States 

20 of America, for the Northern District of California, held at 
the Court room, in the City of San Francisco on Tuesday, 

the 28th day of September, in the year of our Lord, one thousand 
eight hundred and eighty-six. 

(Special term.) 

Present: The Honorable Ogden Hoffman, Judge. 

The Pacific Coast Steamship Company, ] 

T^*" 1, + 11 !- No. 4026. 

The babkentine Poetland, her tackle, / 

apparel, etc. J 

The monition in this cause was this day returned duly executed. 

On motion of Nathaniel Jacobs on behalf of Messrs. McAllister 
and Bergin, proctors for the libellants, it is ordered that procla- 
mation be made. Proclamation was thereupon duly made. On mo- 
tion of E. W. McGraw, proctor for claimants, it is ordered that the 
claimants have ten days in which to answer herein. 

21 In the District Court of the United States, District of 

California. 
In Admiealty. 
Pacific Coast Steamship Company, Libel 1 ant, 

vs. 
The American Barkentine "Portland," her tackle, apparel, &c., 

Respondents. J 

To the Honorable Ogden Hoffman, Judge of the District Court of the 
United States, for the District of Califomia: 

The answer of A. M. Simpson, R. W. Simpson, Samuel Perkins, 
A. Y. Trask, and John Kruse, owners and claimants of the Ameri- 



AMERICAN BARKENTIXE PORTLAND. 9 

can Barkentine " Portland," her boats, tackle, apparel and furni- 
ture, to the libel of the Pacific Coast Steamship Company against 
said Barkentine. 

And now come A. M. Simpson, K. W. Simpson, Samuel Perkins, 
A. Y. Trask and John Kruse, owners of the Barkentine "Portland," 
and for answer to the libel of the Pacific Coast Steamship Company 
against said barkentine, do allege and propound as follows: 

FIKST. 

That the said A. M. Simpson, R. W. Simpson, Samuel Perkins, 
A. Y. Trask and John Kruse are and were at all times in said libel 
or hereinafter mentioned, the owners of the said Barkentine 
22 ' ' Portland," and that no other person is the owner thereof. 

SECOND. 

They admit the allegations of the first article of said libel to be 
true. 

THIRD. 

That respondents are ignorant of the matters contained in the 
second article of said libel. 

FOURTH. 

That as to the matters contained in the third article of said libel, 
the same are not within the personal knowledge of respondents, but 
they have been informed and believe and understand that the same 
are in great part falsely and untruly alleged, and that the truth is as 
hereinafter in the next article alleged and not otherwise. 

FIFTH. 

That on the morning of April 7th, 1886, about four (-1) o'clock the 
said Barkentine " Portland," being then on the high seas about 
twelve miles southwesterly of Point Bonita and being close hauled 
on the starboard tack and heading northwest by west, the wind 
being from the northeastward and blowing at the rate of from three 
to four miles an hour, the sky being overcast and the weather clear, 
the first mate of the Barkentine being the commanding officer on 
deck, the master being below, the lights of a steamer afterward 
ascertained to be the "State of California," were descried by the 
lookouts on the Barkentine, off her port bow and approach- 
28 ing said Barkentine in an eastern direction. That said steam- 
ship and said Barkentine were proceeding in such directions 
as to involve risk of a collision, and the said Barkentine as by law 
she was required to do, continued on her course, the mate thereof 
supposing that said steamship would, as by law required, keep out 
of her way. That at the time said steamer lights were descried 
and previous thereto since sunset the day before, and thenceforth 
continuously up to the time of the collision hereinafter mentioned, 
said Barkentine showed the lights required by law of the United 
States, to wit: On the starboard side a green light and on the port 
side a red light, constructed and fitted as required by law of the 
United States, and said lights were in good order and burning 



10 PACIFIC COAST STEAMSHIP COMPANY VS. 

brightly: That when first seen said steamer was running at a high 
rate of speed, to wit: over thirteen miles an hour, that she con- 
tinued to approach said Barkentine without slackening her speed or 
changing her course. Tliat she atttempted to cross the bows of said 
Barkentine and in making such attempt, the said Barkentine ran 
into her to the great damage of siiid Barkentine. That said collision 
was caused solely by the fault, neglect and negligence of said steam- 
ship and her officers, and without fault or negligence on the part of 
said Barkentine or her officers. 

That said steamship and her officers were at fault and negligent 
as follows: 

1st. In running at a dangerously high rate of speed on a dark 
night at the entrance of the crowded harbor of San Francisco, 
2i 2ud. In that said steamship was not provided with proper 

look outs, that whereas at the time of said collision and long 
prior thereto there was and has been in force a series of rules and regu- 
lations established by the Board of Supervising Inspectors of Steam- 
ships, to provide for the safe navigation of steamships, which rules 
and regulations had been duly approved by the Secretary of the 
Treasury and were well known to the libellant and the officers of 
the "State of California," among which rules was the following: 
Rule V. Section 8. "All passengers and ferry steamers shall, in 
addition to the regular pilot on watch, have one of the crew also on 
watch in or near the pilot house; and this rule applies to all steam- 
ers navigating in the night time." Yet on the morning of said col- 
lision there was no regular pilot on watch on said steamship, and 
there was no member of the crew on watch in or near the pilot 
house. 

That if said steamship had been provided with the proper look- 
outs and a proper watch, the red light of said barkentine could and 
would have been descried at a distance of five miles. 

3rd. That the red light of the barkentine was seen by the look- 
out on the bow of said steamship, when the vessels were over one 
mile apart, and in ample time to have avoided the collision, but 
said steamship neither reversed her engines, slackened her speed, 
changed her course, indicated by signals on her steam whistle the 
course she intended to pursue, nor in any manner whatever made 
any attempt to avoid a collision or keep out of the way of said bark- 
entine. 
25 4th. That said barkentine was seen by the master of said 

steamer, G. Debney, fully five minutes before the collision, 
and he made no attempt whatever in any manner whatever, to avoid 
her or keep out of her way. 

5th. That if said steamship had been running at a moderate rate 
of speed, or if when the barkentine was first seen from the steamer, 
the engines of the steamer had been reversed, or- her helm put hard 
a port, no collision would have occurred. 

6th. Respondents deny that the port light of the barkentine was 
taken down a few minutes previous to the collision, but aver that it 
was in place and burning brightly when and long before the lights 
of the steamer were first seen from the barkentine and continuously 
until after the collision; that the lights of the steamer were seen 



AMERICAN BARKENTIXE PORTLAND. 11 

from the barkentiue some fourteen or fifteen minutes before the col- 
lision. 

Kespondents deny that the barkentine changed her course a few 
minutes before the collision, but admit that the instant prior to the 
collision she luffed into the wind, thereby lesseniug the force of the 
collision which was then inevitable. 

Eespondeuts admit that said barkentine did not exhibit any lighted 
torch, and aver that to have done so would have been gross negli- 
gence on the part of said barkentine. 

7th. That as to the matters alleged in the fourth article of said 
libel, respondents admit that said steamship was damaged by said 
collision, but the extent of such damage and the money equivalent 
thereof are unknown to respondents, and they call upon libellants 
for strict proof thereof. 

8th. That they admit the allegations of the fifth article of 

26 said libel. 

Wherefore, Respondents pray that this Honorable Court 
will pronounce against the demand of the libellant in his aforesaid 
libel mentioned and set forth, with costs. 

E. W. McGEAW, 
Proctor for Claimants. 
R. W. Simpson. 
Chas. Page, Advocate, 

U. S. OF America, ) 

Northern Dist. of California, \ 
On this 9th day of December, A. D. 1886, personally appeared 
before me R. W. Simpson, managing owner of the barkentine 
"Portland," and was sworn to the truth of the foregoing answer. 

SOUTHARD HOFFMAN, 

Comss. U. S. Cir. Ct., N. D., Cat. 
[Endorsed.] Filed December 9th, 1886. 

Southard Hoffman, Clerk. 

27 At a stated term of the District Court of the United States 
of America, for the Northern District of California, held at 

the court room, in the city of San Francisco, on Thursday, the 28th 
day of July, in the year of our Lord one thousand eight hundred and 
eighty seven. 

Present: 
■ The Honorable Ogden Hoffman, Judge. 

The Pacific Coast Steamship Company, ) 

vs. I No. 4026. 

The Barkentine " Portland," her tackle, apparel, etc. ) 

In this cause, by agreement of the Proctors for the respective par- 
ties, it is ordered that this cause be and the same is hereby consoli- 
dated for the purpose of trial, with cause No. 3966, A. M. Simpson 
et at. vs. The Steamer State of California, her tackle, apparel, etc. 



12 PACIFIC COAST STEAMSHIP COMPANY VS. 

A. M. Simpson et al., ) 

vs. ^No. 3966. 

The Steamship "State of Califobnia," her tackle, ap-j 
parel, etc. 

28 This cause, this day, came on regularly for hearing, E. W. 
McGraw and Charles Page appearing as proctors for the libel- 

Jant, and Hall McAllister Esq., appearing as proctor for the claim- 
ants. By agreement of the proctors of the respective parties it is 
ordered that this cause be and it is hereby consolidated for the pur- 
poses of trial with cause No. 4026. The Pacific Coast Steamship 
Company vs. The Barkentine "Portland," her tackle, apparel, etc. 

By agreement of the proctors for the respective parties it is 
ordered that the depositfons of Andrew Parko, taken de bene esse 
taken before J. H. Woodward, Commissioner U. S. Circuit Court, 
District of Oregon, be published and filed. 

Mr. McGraw then introduced in evidence the depositions of Abra- 
ham Isaacs, James Donnelly, Edward Peterson, James Daly and 
Andrew Parks taken de bene esse on behalf of the libellants, and 
called Robert Bressen, J. P. Bennett and James Donnelly, who were 
duly sworn and examined as witnesses on behalf of the libellants 
and rested. 

Mr. McAllister introduced in evidence the depositions of Daniel 
Mullane taken de bene esse on behalf of the claimants and called Ger- 
ard Debney, Charles Stephens and Charles Doran, who were duly 
sworn and examined as witnesses on behalf of the claimants and 
rested. 

By agreement of the proctors for the respective parties it is 
ordered that this cause be and the same is hereby continued until a 
day to be fixed for argument. 

29 In the United States District Court, in and for the North- 

ern District of California. 

The Hon. Ogden Hoffman, Judge. 
A. M. Simpson, Libellant, 

vs. 
The Steamship " State of California," Claimant. 

Pacific Coast Steamship Co., Libellant, 

vs. 
The American Baek " Portland," her tackle, etc. , Claimant 

Thursday, July 28th, 1887 
counsel appearing. 
For the Libellant, E. W. McGraw, Esq., & C. Page, Esq. 
For the Claimant, Hall McAllister, Esq. 



Mr. McGraw — Shall we try both these cases together ? 

Mr. McAllister — Yes. 

Mr. McGraw — If your Honor please. These are two libels. The 
first libel is filed by A. M. Simpson and others, owners of the 
30 barkentine " Portland," for damages done by a collision be- 
tween the steamship "State of California" and the barken- 



AMERICAN BARKENTINE PORTLAND. 13 

tiue "Portland." There is a cross libel by the " State of Cali- 
fonria " against the barkentine "Portland" for like damages. Is- 
sues are made up in both cases. Depositions have been taken in both 
cases, and it is agreed that the two cases shall be tried together. 
The statement of the owners of the " Portland " is set out in the 
libel about as concisely and as definitely as I can state it. The libel 
alleges the owners of the "Portland" being the libellants, "That 
on the 28th day of March, etc." (Counsel reads the libel.) 

The answer denies most of the allegations of the libel, and alleges 
that it did not exhibit a torch, and did not have proper lights. The 
cross libel is about the same as the answer. Our answer in addi- 
tion to the general charge of negligence makes a specification of 
negligence, in this : that whereas by the rules approved by the Sec- 
retary of the Treasury, of the rules of the Supervising Inspectors, it 
was necessary for all passenger steamers, at night, to have a lookout 
on the bow, who should be a regular Pilot, and also should have 
one of the crew stationed as lookout at or near the Pilot House, and 
that this steamship, the "State of California," not only had no reg- 
ular Pilot on watch, but only had one lookout at the bow, and no 
one of the crew was stationed at the Pilot House, as required, by 
the rules. 

The Court — Do I understand you to say it is the Secretary's rule 
that there should be a pilot at the bow ? 

31 Mr. McGraw — Yes, sir, that is the rule. Eule 8, subdi- 
vision 8, of the printed rules of the Supervisors Inspector is, 

" All passenger and ferry steamers shall, in addition to the regular 
pilot on watch have one of the crew also on watch in or near the 
pilot house, and this rule applies to all steamers navigating in the 
night time." 

The Court — You said the rules demanded that there should be a 
licensed pilot on the lookout at the pilot house. 

Mr. McGraw — I said in addition to the pilot on watch. 

The Court — Do you make the assertion or not ? I thought it was 
a slip of the tongue. It could not be, that a pilot should be 
required to be on the lookout. 

Mr. McGraw — I so understand that rule. 

The Court — Eead it again. It does not say a licensed pilot to be 
on the lookout at the bow. 

Mr. McGraw — " All passenger and ferry steamers shall, in addi- 
tion to the regular pilot on watch, have one of the crew also on 
watch in or near the pilot house." This is to be construed with 
Rule 10, subdivision 6, "All steamers navigating the ocean during 
the night time, shall have a lookout at or near the bow." 

The Court -Of course. All vessels have that. It does not say 
it shall have a pilot. 

Mr. McGraw — I consider that the regular pilot on watch means 
the lookout at the bow. 

The Court — I never heard of having a licensed pilot on the look- 
out at the bow. 

32 Mr. McGraw— It refers to pilots licensed by the laws of 
the United 8tates. 

The Court — You made the assertion that the Secretary in his 



14 PACIFIC COAST STEAMSHIP COMPANY VS. 

rules required that a pilot should be on the lookout at the bow of 
the ship. I asked you to point me out where it says that. Be good 
enough to do so. I do not see the least color in these regulations 
to construe it that way. 

Mr. McGraw — I so construe it. The rules require two to be on 
the lookout, and three sometimes. AVe allege there was only one on 
the lookout at the bow, and no man on the lookout in or near the 
pilot house, as required by the rules. That is the substance of the 
claim. Most of our testimony has been taken by deposition, but as 
some of the witnesses are in Court we will put them on the stand. 



Robert Bressrn, a witness called on behalf of the libellant, sworn: 
By Mr. McGraw — Q. What is your business ? A. Seaman. 
Q. "What nationality are 3'ou ? A. German. 
Q. Do you know the barkentine "Portland"? A. Yes, sir. 
Q. Did you sail on her ? A. Yes, sir. 

Q. What vessel, if any, were you on in April, 1886 ? A. I was on 
the barkentine "Portland." 

33 Q. Were j^ou on her at the time there was a collision 
between the "Portland," and the steamship off the heads? 

A. Yes, sir. 

Q. What was your position on the vessel, a common seaman or 
an officer ? A. 1 was before the mast. 

Q. What time of day was that collision? A. It was between 
three and four o'clock in the morning. 

Q. Were you on watch or below at the time of the collision ? 
A. I was on watch. 

Q. What time did you go on watch ? A. Twelve o'clock. 

Q. Who had command of the deck? A. The Mate. 

Q. You were in the Mate's watch then ? A. Yes, sir. 

Q. What was the Mate's name ? A. Peterson. 

Q. How many men were in that watch ? A. Four and the mate. 

Q. What were the names of the men on the watch besides yoiir- 
self ? A. I only know them by the first name. 

Q. What was the first name of the three men? A. Isaac, Dan, 
and Andrew. 

Q. When you say you came on deck at 12 o'clock, you mean 12 
o'clock at night? A. Yes, sir. 

Q. Which way was the " Portland " steering ? A. On the port 
tack at that time. I don't know which way she was heading. 

34 Q. When you came on deck ? A. Yes, sir. 

Q. How long did she continue to stand on the port tack? 
A. About two hours. 

Q. Which way then did she steer? A. Then she went on the 
starboard tack. She was heading up the coast. 

Q. Which way was the wind ? A. The wind was northerly. I 
couldn't tell you exactly. 

Q. What sort of a night was it? A. A fine night. The moon 
was not out. The stars were out though. 

Q. Did you see any lights ? A. Yes, sir. 

Q. What lights. Did you see them ashore ? A. I saw the Head 
lights, and I saw Point Reyes, and the Farallones. 



AMERICAN BARKENTINE PORTLAND. 15 

Q. At the time this collision took place what tack was the bark- 
entine on? Who was at the wheel at the time of the collision? A. 
Andrew. 

Q. "What was your station at the time of the collision ? A. On 
the port side. 

Q. Was there any lookout during your watch? A. Yes, sir. 

Q. Who was on the lookout during your watch ? A. I was on 
the lookout from 12 till 2. Isaac relieved me at 2 o'clock. 

Q. Just previous to the collision what were you doing ; anything 
particularly? A. No, nothing particular. 

Q. Where were the lights of the "Portland" rigged? A. Aft 
on the mizzeu rigging. 

35 Q. Above the rail ? A. Yes, sir. 

Q. How high above the rail ? A. About seven or eight feet 
from the poop deck. 

Q. Did the "Portland " have a cargo on board ? A. Yes, sir. 

Q. What was the cargo ? A. Lumber. 

Q. A deck load? A. Yes, sir. 

Q. Was the deck load piled above the rails? A. Yes, sir. 

Q. How high were these lights above the deck load? A. About 
two or three feet; three feet. 

Q. Just pi'evious to the collision what sail was the "Portland" 
under? A. She had her top-gallant sail, topsail, foresail, jib and 
spanker. 

The Court — How many masts have a barkentine ? A. Three. 

Q. How does it differ from a bark? A. She is square rigged on 
the foremast. 

Mr. McGbaw — Q. What was the first time that you saw anything 
of the steamer that night ? A. I saw the masthead-light of the 
steamer. 

Q. How long was that before the collision ? A. About half an 
hour. 

Q. Which way did that light bear from the barkentine when you 
first saw it — off which bow ? A. the port bow. 

36 Q. The port bow? A. Yes, sir. 

Q. When the light of the steamer was seen on the barken- 
tine what was done on the barkentine? A. Nothing done; kept on 
her course. 

Q. Who saw the light first, or reported it first, do you know ? A. 
No, I don't know who it was. Dan, I think, saw it first. 

Q. Afterwards did you see any other light than the headlight? 
A. Yes, sir. 

Q. What light did you see ? A. I saw the green light. 

Q. How long was it after you saw the white light that you saw 
the green light ? A. Ten minutes. 

Mr. McAllister — That is the green light of the steamer you 
mean ? A. Yes, sir. 

Mr. McGraw — Q. How long was it before the collision that you 
saw the green light? A. A quarter of an hour or twenty minutes. 

Q. Do you know whether Mr. Peterson, the mate, saw the lights 
of the steamer? A. Yes, sir. 



16 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. How do you know that be saw tliem ? A. We were together 
on deck. He was with us on deck. 

The Court^ — Q. How do you know that he saw it? Did he speak 
of it? A. Yes, we were together on the deck, looking at it. 

Q. How do you know that he saw it, was he looking at it with 
you ? Te.s, sir. 

37 Mr. McGraw — Did he speak of it ? A. I was asking Dm 
what light that was. He said it was a steamer's light, and 

we was all together there. 

Q. After you saw the side lights what occurred ? State in your 
own language what occurred ? A. The steamer came right up on us, 
and after we were pretty near close then he kept up. 

Q. Who kept up ? A. The steamer. He went right off that Avay, 
full speed. [Describing.] 

Q. Did you see the saloon lights on the steamer before she struck 
you? A. I don't know how many lights I saw after she was close 
to us. 

Q. What was done on the barkentine when the steamer came 
close to you — anything ? A. She was close on the wind. 

Q. The bark was close on the wind? A. Yes, sir. 

Q. Were any orders given on the bark? A. Not that I know of. 

Q. What was done when the steamer was coming close to you? 
A. Nothing done. 

Q. Anything said ? A. No, I was hallooing. We were hallooing 
at the time. 

Q. That was doing something? A. Yes, sir. 

Q. Who was hallooing at the steamer? A. I was. So was the 
rest of them. 

Q. Did you hear any reply from the steamer? A. No, not before 
the time she struck. Then I heard some hallooing. I could not 
make out what it was. 

38 Q. Where did the steamer strike the bark? A. We were 
struck forward on the bow. 

Q. Struck the steamer with the port bow? A. Yes, sir. 

Q. AYhat was the result of the collision? A. She took the bow 
away from us, and the bowsprit. 

Q. Did you have any occasion to notice the lights of the "Port- 
land " at any time before the collision ? A. Yes, sir. 

Q. How long before the collision did you look at the lights ? _A. 
About twenty minutes. We were standing on the lee bow looking 
at the lights all the time. 

Thr Court — Q. How did she bear from you when you first saw 
her white light ? A. She bore right up to us. 

Q. What was her bearing ? A. I don't know. 

Q. How many points was she a beam or on either bow, and if so, 
which, and how many points. A. She was pretty near a beam. 

Q. A beam ? A. Further forward. 

Q. On which beam? A. The port beam. 

Mr. McGraw— Q. Could you mark on the blackboard the posi- 
tion of the vessels, so as to show the Court which way they lay. A. 
Yes, sir. 



AMERICAN BAEKENTIXE PORTLAND. 17 

The Court — Q. How far off was sbe ? A. She was about off two 
miles at the time we saw the p;reen light. 

Q. What was that, to windward of you or to leeward of you ? A. 
To leeward. 

Q. If you made her on your port beam to leeward two or three 
miles off, and yon held your course, how did she ever hit 

39 you ? I should think she would have gone astern of you. A. 
She did not do anything. She came right up on us. 

Q. Why did she not go astern of you if she was on 5'our beam 
and to leeward of you, and you sailing off here one or two miles oft", 
why would she not have gone astern, and you got out of her way, 
unless she tried to run into you ? A. She would not do it. 

Mn. McGraw — Q. Just mark on the blackboard where your vessel 
was, and the direction in which the other vessel was. A. This was 
our bow and this was the steamer's, and the steamer came right 
down on us. 

[Describing on the blackboard.] 

Q. You saw the light in about that direction ? A, Yes, we were 
standing on the lee bow looking at that steamer. 

Q. You said from where you were standing on the bark, looking 
at the steamer you could see the red lights of the ' ' Portland "? A. 
Yea, sir. 

Q. From the time you first saw the steamer up to the collision, 
what was the condition of the red light on the " Portland"? A. It 
was in good order. 

The Court — Which is your vessel? A. This one. [Pointing.] 

Q. And that is the steamer? A. Yes, this was the lee side. 

Q She was not on your bow ? A. Not quite on the bow. 

Q. What was the distance between the two ships? A. At the 
time I saw the green light she was off about two miles. 

40 Mr. McGraw — Q. At the time you saw the green light of 
the steamer she was two miles off? A. Yes, I could not tell 

exactly. 

The Court — Q. How far off was she when you saw the white 
light? A. She was a long way off. 

Q. She was about two miles off when you saw the green light? 
A. Yea, sir. 

Q. How many points off of the beam did she bear ? You said she 
was a beam? A. Yes, about two points further forward of the 
beam. 

The Court — Did you see your red lights before the collision ? A. 
Yes, I saw the red lights. 

Mr McAllister — You saw the red lights of the steamer when 
she came right up ? A. Yes. 

The Court — How far off was she when you saw her red light ? 
A. A little while before the collision. 

Q. Can you give us an idea of the time, half an hour, or a few 
minutes? A. Only a few minutes. 

Mr. McGraw— You saw the lights of the " Portland," were they 
burning ? A. Yes, and burning bright. 

Q. Burning bright ? A. Yes, sir. 



iS PACIFIC COAST STEAMSHIP COMPANY VS. 

The Court — Have you mentioned what sail you were carrying ? 
A. Yes, sir. 

Q. Were you sailing close to the wind? A. Yes, close to the 
wind. 

Q. As close as you could ? A. Yes, as close as she could lay. 

Mr. McGbaw — Do you know whether the lights of the "Port- 
land " were burning when you went on watch at 12 o'clock ? A. 
Y^es, it was my lookout. 

41 Q. Did the " Portland," from the first time you saw the 
lights of the steamer up to the collision, change her course ? 

A. No, not that I know of. You could see by the sail that she was 
by the wind. 

Q. Did she luff up into the wind before the collision ? A. No. 

Q. At the time of the collision did you notice whether her sails 
were full ? A. At the time of the collision the sails were all aback 
and the steamer hauled her right round. 

Q. Just before the collision did you notice whether the sails were 
full ? A. Yes, the top-gallant sail was shaking. 

Q. When the steamer struck you she swung the "Portland" 
round ? A. Yes, sir. 

Q. Did the steamer stop after the collision? A. No, sir. 

Q. After the collision what occurred on board the bark ? A. We 
clewed up the foresail. 

Q. Was there any water in the bark after the collision ? A. Yes, 
she was filled up in about ten minutes. 

Q. How did you get into San Francisco? A. After awhile the 
wind changed, and we got a fair wind, and we ran inshore, and a tug 
came out to us. 

Q. What kind of lights were they on the "Portland"? What 
was the light on the port side of the " Portland "? A. Ked. 

42 Q. What on the starboard side? A. Green. 

Q. What kind of lights were they ? A. Red and green. 

Q. What kind of lamps ? A. I don't know the name of them. 

Q. How were the lanterns rigged? A. In the mizzen rigging. 

Q. How were they fastened up ? A. On to the boards. 

Q. Where was the mate at the time of the collision? A. On the 
lee side; the port side. 

Q. Whereabouts ? A. Between the fore and mizzen rigging. 

Q. Where were you ? A. On the same place. 

Q. Where was the captain ? A. I see the captain when we came 
up to windward. He sang out to clew the foresail up. 

Q. You did not seethe captain before the collision? A. I saw 
him at the time of the collision. I went over to the water side and 
saw the captain standing there. 

Q. Do you remember when Dan spoke about the lights, what the 
mate said about the lights of the steamer ? A. Yes, he said there 
is the steamer light. 

Q. What did the mate say? A. Y'"es, he says, he sees them, and 
we looked at the lights, and saw they were burning. 

Q. Did the mate say anything about pumping the vessel out after 
you saw the lights of the steamer ? A. Yes, sir. 



AMERICAN BAliKENTINE PORTLAND. 19 

Q. What was said about that? A. To pumji ship. He looked 
at the steamer and said, " We had better stay up until she 

43 has passed." 

Q. Did any men go in the hold to pump the ship ? A. No; 
one was going to go down, but he did not go down. 

Q. Where was the pump? A. Amidships on the mainmast. 

Q. How was the deck load fixed so that you could get at the deck ? 
A. There is a hole to go down. 

Q. At the time of the collision and before it, all the watch were 
on deck? A. Yes, sir. 

The Court — Did you state whether you struck the steamer, or she 
struck you? A. We struck the steamer. 

Q. Where did you strike her? A. Behind the foremast. 

Q. Behind the foremast ? A. Yes, sir. 

Q. Where was the point of collision on your ship, on your port 
bow ? A. Yes, sir. 

Q. How many points on the port bow. Whereabouts. Forward 
of your foremast ? A. Yes, right forward. 

Q. Was it on the top-gallant forecastle ? A. Yes, sir. 

Q. How far from the break was the top-gallant forecastle; at the 
break? A. Right forward. 

44 Q. Was it abaft the cathead ? A. Before the cathead. 

Q. How far from the stem of the ship ? A. Eight on the 
stem. 

Q. Did you strike her bows on. I want to get at, as near as I 
can, the point of collision ? A. The jibboom went first, the bow- 
sprit, and stem and all. 

Q. Did you strike her with the jibboom ? A. Yes, sir. 

Q. You mean to say that you ran into her bows on? A. Yes, on 
the side like. 

Cross Examination. 

By Mr. McAllister — Q. As I understand you, between twelve 
and two o'clock you were at the wheel? A. On the lookout. 

Q. Were you at the wheel that night at all? A. No, sir. 

Q. Who was at the wheel between twelve and two ? A. Dan. 

Q. Dan Mullane ? A. Yes, sir. 

Q. Who was at the wheel between two and four? A. Andrew. 

Q. Andrew was at the wheel at the time of the collision? A. 
Yes, sir. 

Q. The man at the wheel could not see the side lights of the 
"Portland"? A. Yes, he could. 

Q. Are they not screened, so that the man at the helm cannot see 
them? A. They are screened, but you can see on the rig- 

45 ging where they are chained on. 

Q. You could not see the lights themselves standing at the 
wheel ? A. No, not the lights themselves. 

Q. The deck load was how many feet above the rail ? A. About 
six feet. 

Q. The man standing at the helm could not look over the deck 
load? A. Yes, he could. 



20 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. How coulJ he look over the deck load if it was sis feet above 
the rail '? A. There is a poop. 

Q. How high was the deck load above the poop? A. She was a 
little over the house. 

Q. Was not the deck load about three feet above the top of the 
poop '? A. Yes, more than that. 

Q. Does the man at the helm stand below the top of the poop, or 
not '? A. He stands right on the poop. 

Q. Does he not stand below .^ A. No, sir. 

Q. He stands on a level with the poop? A. He stands right on 
top of the poop house behind the house. 

Q. Could a man standing at the helm look over the deck load ? 
A. Yes, sir. 

Q. How high would the deck load come to him as he stood at the 
wheel ? A. About four feet ; four or five feet. 

Q. Who was on the lookout at the time of the collision ? A. Isaac. 
Q. How long had Isaac been on the lookout ? A. An hour 

46 and a half; something like that. 

Q. When did he go on the lookout? A. Two o'clock. 
Not exactly two o'clock, somewhere about. 

Q. You put it about two o'clock when Isaac went on the lookout, 
and was expected to stay there till four? A. Yes, sir. 

Q. You heard no notice from Isaac of this light of the steamer ? 
A. No, sir. 

Q. Dan saw it first? A. Yes, sir. 

Q. Dan was standing with you where ? A. Walking up and down 
the deck forward. 

Q. Forward of the foremast ? A. Between the fore and main- 
mast. 

The Court — Q. On top of the lumber. A. Yes, sir. 

Mr. McAllister — You said to Dan, ' ' What is that light ?" A. 
Yes, sir. 

Q. He said, "That is a steamer's headlight?" A. Yes. 

Q. So Dan was the first man that noticed the light ? A. That I 
know of. 

Q. So far as you know? A. Yes, sir. 

Q. You heard no alarm from Isaac on the lookout about the light? 
A. No. sir. 

Q. Did you strike bells on board of your ship at three o'clock ? 
A. No, sir. 

Q. Did you not strike bells at all ? A. No, sir. 

47 Q. Did you have a torch on board the " Portland ?" A. 
Not that I know of. I did not see it. 

Q. Did you see any torch used that night? A. No, sir. 

Q. When was it that the mate ordered you to pump ? What time 
was it; before you saw the steamer's light or after, that the mate 
told you to go and pump ? A. After we saw the steamer's light. 

Q. After you saw the headlight, or after you had seen the green 
light ? A. After we saw the headlight. 

Q. Before you saw the green light? A. Yes, sir. 

Q. Do you recollect Dan saying that he did not want to go and 
pump, because that steamer was too close ? A. Yes, sir. 



AMERICAN BAHKENTINE POBTLAND. 21 

Q. He said that, did be not? A. Yes, sir. 

Q. He did not go and pump ? A. He did not. 

Q. Did any one of you go down to pump ? A. No, sir. 

(The deposition of Abraham Isaacs is offered and received in evi- 
dence.) 

48 J. P. Bennett, called on behalf of the libellant. Sworn. 
Mb. McGkaw — Q. What is your occupation ? A. Cook 

and steward. 

Q. Do you know the barkentine " Portland?" A. I do. 

Q. Were you on her in March and April, 1886? A. Yes, sir. 

Q. Were you on board of her at the time of the collision with the 
"State of California ?" A. I was, sir. 

Q. Your position on her was that of cook and steward. A. Yes, 
sir. 

Q. Do you know whose duty it was to clean and fix the lights of 
the ' ' Portland ?" A. I do. 

Q. Whose was it ? A. My duty as steward. 

Q. What time of day did you clean the lights and fill them ? A. 
I generally do that after I get through with my dinner, say about 
from two to half-past two. After I clean up everything I clean my 
lamps. 

Q. Do you know whether the day before the collision the lamps 
were cleaned and filled? A. Yes, sir; I cleaned them every day. 

Q. What time were the lights put out? A. Just according to the 
time. In winter time we put them out a little earlier. In the sum- 
mer time we put them out a little later. In the summer time we 
put them out from seven to a quarter or twenty minutes or half-past; 
at sunset, anyhow. 

49 The Court — Is there any averment in the answer or cross 
libel charging you with failure to exhibit proper lights ? 

Mb. McAllister —Yes , we say they took the red light down. 

Mr. McGraw — Q. The day before the collision you filled and 
cleaned the lamps as usual? A. Yes, sir. 

Q. On that night what time were the lights put out ? A, I can- 
not say exactly. I suppose a little after 7, perhaps. 

Q. Who put the lights out ? A. 1 passed them up on deck, and 
certainly called one of the officers to put them out. I think it was 
the second mate's watch on deck at the time I handed them to him. 

Q. What kind of lights w^ere they? A. Side lights; regular 
lights to put out on board vessels. 

Q. What color? A. Ked and green. 

Q. Which went on the port side? A. The red on the port and 
green on the starboard. 

Q. What did you burn in those lights ? A. Kerosine. 

Q. The morning after the collision did you clean the lamps? A. 
No, sir; I did not touch them. 

Q. Did you see the lights after the collision? A. I did. 

Q. How long after ? A. I seen them when they were taking them 
in, and the second mate asked me where shall he put them. I 



\Ll PACIFIC COAST STEAMSHIP COMPANY VS. 

says, " We have no place to put them, lay them oa top of the after- 
house or cabin." 

Q. Did you see them before they were taken down and after 

50 the collision ? A. Yes, sir; I seen them after the collision. 
Q. While they were still up in the rigging? A. Yes, sir. 

Q. How were they then ? A. The light was burning. 

Q. What was the condition ; burning good, or bad, or how? A. 
The red light was burning bright. 

Q. Where were you at the time of the collision ? A. I was in 
my room getting on my shoes at the time when they struck. When 
I heard the crash I was getting on my shoes. 

Q. Had you been on deck at all? A. I was not on deck. 

Q. That night? A. Not that night after I went to my bed. 

The Court — Q. Where do you sleep, in the caboose? A. No, 
sir; there is no caboose. I have a nice little cabin, a regular house, 
in the cabin aft. I have a stateroom there to myself. 

The Court — Q. What time of year was this? 

Mr. McGraw— The 7th of ApriL 1886. 

Q. You say you were putting on your shoes at the time of the 
collision. What caused you to get up ? A. The noise I heard on 
deck, the men shouting on deck at the steamer, not to say at the 
steamer, but shouting on deck. I understood them to say, "What 
are you doing ; what are you trying to do "? I jumped out of my 
bunk, got my pants on, and was just fitting my feet in my shoes 
when I heard the crash. I did not know what it was. 

Q. More than one man hallooed on deck? A. It sounded to me 
like all hands. It woke me up. 

51 Q. It woke you up? A. That is what startled me first. 

Q. When you went on deck what was the condition of things ? 
A. When I got on deck, as I came out of the cabin, I looked for- 
ward and saw our vessel laying that way and the steamer that 
way. [Describing.] How far off I could not say. Our ship was 
laying back. I ran to the port side, and looked over the port side 
to see if she was sinking. 

Q. Was she sinking? A. I should say so. 

Q. How far was the steamer from you when you came on deck? 
A. I could not say. She did not remain there very long. 1 see 
them laying like in this way. [Describing.] 

Q. Did the steamer stop? A. Not as I know of. We did not 
see nothing of her in a very short time. She was out of our sight 
and reach. 

Gross Examination. 

Bx Mr. McAllister — Q. Mr. Bennett, you went to bed what 
time that night ? A. I cannot say exactly. 

Q. Well, about? A. It must have been about half-past seven or 
twenty minutes to eight. 

Q. You did not get up after that until you heard this noise of the 
approaching collision ? A. Yes, sir. 

Q. What kind of oil did you burn in these side lights of the 
' ' Portland "? A. Kerosine oil. I believe the name of it is " Pratt's 
Brilliant Oil." 



AMERICAN BAEKEMrNE PORTLAND. 23 

The Court— Q. What time did the collision occur? 
Mb. McAllister — About half-past three in the morning, or 
nearly four. 

52 Q. Did you fill the lamps on the "Portland" every morn- 
ing or every afternoon ? A. I did. 

Q. How much kerosene oil do each of these lamps hold? A. I 
never measured them. I cannot exactly tell. A little over a pint 
of oil, more or less. 

Q. After the lamp has burned all night, how much of the oil is 
consumed ? When you take it down in the morning how much is 
left generally ? A. If I was to fill them up to the top those lamps 
would burn fifteen hours. After the collision I suppose there was 
about half the quantity. 

Q. According to the way you fill them up ? A. About half would 
have gone. 

Q. Would you fill them up the next night before you set them out 
again ? A. Yes, sir. 

Q. What was the character of the wick in the side lights ? A. 
The flat wicks that are used in kerosene lamps. 

Q. What was the width of the wick ? A. Half an inch or a little 
over. 

Q. How thick was it ? A. A natural size for a lamp wick of that 
thickness. Those things I don't measure. 

Q. From your experience on board the "Portland," were they in 
the habit of taking down these lights and retrimming them ? A. 1 
don't know. They did not bother me. 

Q. You had nothing to do with that? A. No one called me to 
trim the lights. I always made it a practice to ask the officer of the 
deck if they had any trouble with the lamps, and they said 
"No." 

53 The Court — Q. Who had charge of the kerosene ? A. I 
had. 

Q. Could anyone fill the lamps without coming to you ? A. Yes, 
they could go in there, but no one had to fill them. 

Q. They could have gone and filled them and got the oil without 
waking you up ? A. Yes, sir. 

Mr. McAllister — Q. Did you have a torch on board the "Port- 
land" at this time? A. Yes, sir. 

Q. Where was the torch kept ? A. In the mate's room under bis 
writing desk, there was a little shelf there, made purposely for it 
where it was kept. 

Q. Where was the mate's room? A. As you go in the forward 
cabin door on the port side. 

Q. The house on deck ? A. Yes, sir. 

Q. What did you burn in the torch ? A. Turpentine. 

Q. Where was the turpentine kept ? A. Sometimes the captain 
would have the turpentine in his room. There always was turpen- 
tine in the paint locker. 

Q. Where was the paint locker? A. The forward end of the 
house. 

Q. The forward end of what house? A. Of the forward house. 



24 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. That is where the men slept? A. Forward of the mainmast. 
Q. That was the paint locker ? A. Yes, sir. 
Q. Then came the forecastle ? A. Yes, sir. 
Q. And then the galley ? A. Yes, sir. 

Q. The galley was the afterpart of that house on deck ? 

54 A. Yes, sir. 

The Court — Did you ever see that torch used on board. 
A. I have. 

Q. How often? A. A good while ago. I saw it once or twice 
somewhere near the Farallones. 

Q. Was it always used in foggy weather? A. I cannot say it was 
used in foggy weather. 

Q. When was it used, and what for? A. A pretty clear night. 

Q. When you saw the torch used what was the state of the 
weather? A. I cannot remember that. I cannot say. That is 
about two years and ahalf ago. 

Mr. McAllister — Q. How long were these wicks that you used in 
the side lights ? A. I should say about six inches or more. 

Q. Did you put in a fresh wick every night, or not? A. No, I 
did not do that. The owners would turn me out of the ship if I did. 

Q. I would not like them to lose your valuable services. How 
often did you put in the wick? A. When it was needed. 

Q. How often would that be ? A.I let the wick stand I should 
saj' about two weeks or more in the lamp. Sometimes the wick 
might not burn bright and I would take that out and put in a new 
one. 

55 (The deposition of Captain James Donnelly is offered and 
received in evidence.) 



Egbert Bressen recalled. 

Mr. McGraw — Q. After you sighted the steamer that night, were 
either of the lights taken down ? A. No, not that I know of. 

Q. Could they have been taken down without your knowing it 
after you sighted the steamer ? A. After we sighted the steamer 
the lights were not taken down. 

The Court — Q. How long was it from the time you sighted the 
steamer until the collision occurred ? A. About half an hour. 

Q. How long was it after you saw her green light that the collis- 
ion occurred ? A, About twenty minutes or a quarter of an hour. 

Q. When did you first become apprehensive or fear thot the col- 
lision would occur ? How long was that before the collision did oc- 
cur? A. About ten minutes. I saw the steamer all the time com- 
ing right down on us. 

Q. You began to be alarmed about ten minutes before it occurred? 
A. Yes, sir. 

Q. Did you alter your course at all, or did you keep close to the 
wind ? A. Close to the wind. 



56 Mr. McAllister — I want to ask Captain Donnelly one or 

two questions. 
James Donnelly called on behalf of libellant. Sworn. 



AMERICAN BARKENTIXE PORTLAND. 25 

Mr. McAllister — Q. Did you have a torch on board at the time 
of this collision ? A. Yes, sir. 

Q. Had you ever used that torch? A. Yes, sir. 

Q. How many times had you used it? A. I might have used it 
a half dozen times. 

Q. Did you ever use it to an approaching steamer, or only sailing 
vessels ? A. Never for a steamer. I never had occasion to use it 
for a steamer. I have used it for sailing vessels. 

The Court — That is in foggy weather? A, No. sir; in clear 
weather. 

Q. When does the rule require the torch to be displayed? A. 
When one vessel is overtaking the other, the vessel which is being 
overtaken should exhibit a torch light to the vessel which is coming 
up astern. 

Mt(. McAllister — Q. Do you not consider if a steamer is ap- 
proaching you, and there is any danger of collision, that you ai'e 
bound to show your torchlight? A. If I thought the steamer could 
not see my lights then I Avould use my torchlight, or if I thought 
there was any carelessness in the steering or course of the ship, or 
that the steamer was steering, I would exlaibit the torchlight to call 
his attention to it. 

Q. You never have exhibited your torch to a steamer? A. No, 
sir 
57 Q. You generally exhibit your torchlight to a vessel com- 

ing up behind ? A. Y"es, or should I see a vessel, and could 
not make out its lights, if I was very close to it I should show my 
torchlight. 

Q. Your idea is that a torch is to warn a vessel coming up from 
beliind ? A. Yes, sir. 

Q. Because he cannot see your side lights, as they are screened? 
A. Exactly. 

The Court — Q. Y'"ou do not carry a white light? A. No, sir. 



Mr. McGraw — We now offer in evidence the deposition of Ed- 
ward Peterson. He was the mate having charge of the deck, and it 
will be considered as read. 

Mr. McAllister — We have no objection. 

Mr. McGraw — With regard to all these depositions we can prove 
by the captain that the men are away. 

Mr. McAllister — We have no objection to their being read. 

Mr. McGraw — We offer the deposition of James Daily. He was 
the second mate, but was below when the collision occurred. He 
testified as to the condition of the lights immediately after the col- 
lision. 

The Court -What damages do you ask for? 

Mr. McGraw — Ten thousand dollars. We next offer the 
58 deposition of Andrew Parks. He was theseanian who was 

at the wheel at the time of the collision. 

The Court — What was the complement of your men ? 

Mr. McGraw— Eight men before the mast, the Captain, First and 
Second Mate, and Cook. 

The Court — Have you examined all the watch on deck ? 



26 PACIFIC COAST STEAMSHIP COMPANY VS. 

Mr. McGeaw — No. They took the deposition of one of the 
men, Dan MuUane. 

Mr. McAllister — I do not know how far this deposition of Parks 
is admissible. It is taken under a notice to me to take testimony 
in Oregon. I admitted service of tlie notice, but objected to that 
mode of proceeding. [Reads.] We objected to this mode of tak- 
ing testimony in another State. 

The Court — AVho took the deposition ? 

Mr. Page — It was taken de bene esse under the statute. 

The Court — You can discuss the question hereafter. 

Mu. McAllister — AVe object to the mode in which this is taken. 
We usually suppose that the mode of taking testimony in other 
States is by commission. That is the ordinary mode that I have 
seen ])ursued. Then there are certain objections to the questions. 
This is one of the questions: " Q. State if in your opinion this.col- 
lision was caused by the bad seamanship of the officers or crew of 
the barkentine 'Portland"? Objected to as incompetent." We do 
not think that is a proper question to put to the witness. 

The Court — I will consider that hereafter. 

Me. McGraw — That closes our case. 



59 Mr. McAllister — We oJ0fer in evidence the deposition of 

Daniel Mullane. You understand, Mr. McGraw, that both 
these cases are being tried together, the case of Simpson v. The 
Steamship "State of California," and the cross libel of the Pacific 
Coast Steamship Company v. The American Bark "Portland." All 
the testimony is applied to both cases. 

Mu. McGraw— Yes. 

Mr. McAllister — Daniel Mullane, whose deposition we offer, 
was a seaman on board of the "Portland." 



60 G. Debney, called for the claimant, sworn: 

By Mr. McAllister — Q. How long have you been master, 
captain, of steamers on this Coast? A. Sixteen years. 

Q. You were in command of the "State of California" at this 
time? A. Yes, sir. 

Q. Are you a licensed pilot under the United States? A. Yes, 
sir; for San Francisco. 

Q. Who issues that license? A. Captain Freeman, of the local 
inspectors. 

Q. How long have you been such a United States pilot? A. 
Ever since I have been master of steamers ; between sixteen and 
seventeen years. 

Q. You were such pilot on this occasion ? A. Yes, sir. 

Q. Y^ou were coming down from Portland with a number of pas- 
sengers and cargo on this occasion? A. Yes, sir; with a full load, 
a full load of freight and a full load of passengers. 

Q. How was the weather on this night, say the half hour previ- 
ous to the collision ? A. Little drifts of mist, and then the mist 
would disappear, and it would still remain very dark overhead, 
while it was clear on the horizon. 

Q. What was the character of the wind ? From what quarter was 



AMERICAN BARKENTINE PORTLAND. 27 

the wind; say from half au hour previous to the collision up to the 
time of the collision ? A. North and north northeast ; somewhere 
between those two points. 

61 Q. What was the force of the wind witli the sails that a 
barkentine could carry at that time? What speed in your 

judgtnent could she be going if she was sailing ou the wind ? A. 
I should judge the speed of the wind would be about ten or twelve 
miles au hour. 

Q. The speed of the wind? A. Yes, at that time. 

Q. A vessel sailing with the sails which have been described as 
being on a barkentine, would be going how fast ? A. She would 
not be going less than five or six knots. 

Q. Ou this occasion, so far as your lights were concerned, what 
lights did the steamer have set ? A. A white light at the masthead. 

Q. How high above the deck? A. Sixty feet above the upper 
deck. 

Q. What side lights did you have? A. Regalar side lights. A 
green light on the starboard side, and a red light on the port side. 

Q. According to United States regulations? A. Yes, we have 
very fine lights; larger than usual. 

Q. What was the size of your lights on this occasion? A. Our 
lights are eight inches in diameter. The law requires only six — the 
glass I mean, not the lantern. 

Q. All properly screened according to regulation ? A. Yes. 

Q. Had these been set all night? A. Yes, all night burning 
bright. 

Q. How long previous to the collision did you come on deck ? A. 

I was on deck most of the night. I was on deck passing Point 

Reyes, and I came on deck and remained there, at half 

62 past three, and was on deck when the watch was relieved at 
four o'clock. 

Q. When did you come on deck that night, at two oclock, or 
when? A. I was on deck at difi'erent times from twelve o'clock up 
through the night. I did not remain. I was on deck when passing 
Point Reyes — about an hour and a half before that I was on deck on 
the bridge there. 

Q. About what time did you pass Point Reyes ? A. It would 
take about an hour and a half from Point Reyes to the place of col- 
lision. That would be about half-past two. We passed Point 
Reyes about half-past two. 

Q. What time do you fix as tbe time of the collision ? A. Four 
ten, because the watch had been relieved, and our watches and 
clocks were all correct. It was a few minutes after; between seven 
and ten minutes later. 

Q. Who had charge of the deck after four o'clock? A. The sec- 
ond officer. 

Q. Did he come on deck at four o'clock ? A. Yes, he was on the 
bridge when he relieved the third officer. 

Q. How long were you on the bridge previous to the collision ? 
A. From half-past three to the time of the collision. 

Q. Who w^as on the bridge with you at that time? A. The third 
ofiicer was on till four o'clock. He was relieved by the second 



28 PACIFIC COAST STEAMSHIP COMPANY VS. 

officer, who remained there, and who was on the bridge at the time. 

Q. You were on the bridge from half-past three o'clock until the 

time of the collision, the third officer was on the bridge from 

63 half-past three until four, and the second officer from four 
o'clock until the time of the collision? A. Yes, sir. 

The Court — Where was your ship when you went on the bridge? 
A. We passed Point Reyes at half-past two o'clock. I was on the 
bridge then, and down on deck. 

Q. On entering the harbor at night it is the practice of all com- 
manders of steamers to remain on the bridge all the time ? A. Y'^es, 
sir. 

Q. They do not leave the bridge ? A. Except for a moment or so. 

Mr. McAllister — How is the bridge located ? A. It is directly 
abaft the pilot house, fifteen feet abaft the foremast, and elevated 
above the house. It is on a level with the top of the deck of the 
upper house. 

The Court — The helmsman stands below there? A. Yes. 

Q. You give your orders through what? A. Through a scuttle. 
We can look right at him. 

Mr. McAllister — How close are you to the pilot house ? A. 
Right at the pilot house. We stand against it. It forms part of 
the bridge. It is raised two or three feet above the bridge. 

Q. Who was at the wheel at the time of the collision? A. The 
quartermaster. We have six quartermasters. One of them was at 
the wheel. 

Q. Who did you have on the lookout, and where was he stationed ? 
A. Another of the quartermasters was on the lookout, and he 

64 was stationed forward, the usual place, just abaft the anchor, 
on a level with the hurricane deck. 

Q- One quartermaster on the lookout? A. Yes, sir. 

Q. And one at the wheel ? A. Yes, sir. We have three on watch 
at the time. 

Q. How many passengers did you have? A. I could not say ex- 
actly. I shouM judge over two hundred. 

Q. What kind of a watch were you and the third mate keeping 
from half-past three until four o'clock on the bridge there? A. As 
we usually do, where we could not help but see the whole horizon, 
right in front of the vessel, with nothing to obstruct our sight. 

Q. How long provious to the collision, if at all, did you notice 
this barkentine? A. I was in the act of turning down from the 
bridge when the lookout reported a sail. I returned. The second 
mate and I both saw the light — saw the vessel, say four or five min- 
utes before the collision. 

Q. That was the first notice that you had of the vessel ? A. Yes, 
the lookout reporting the sail. 

Q. You used the expression that you saw the light, or saw the 
vessel ? A. I saw the vessel. 

Q. Did you see any light? A. No light. 

The Court — You said just now that you saw the light? A. No, 
sir. 

Q. Was that an inadvertence? A. I beg pai'don, I do not think 
I said so. 



AMERICAN BARKENTINE PORTLAND. 29 

The Court — He said " I saw the light." 

65 Mr. McAllister — ^He said that it was a mistake. A. I 
meant to say the vessel. 

Q. How were you steering just previous to this collision ? What 
was your course? A. East northeast, or east by north half north, 
steering for the North Heads, which would be east northeast. 

Q. How was the wind ? A. North by east within a point. 

Q. If this bark was sailing close to the wind what would be her 
course, about? A. About northwest by north, allowing her five 
points; northwest by north. 

Q. The lookout gave the notice of the ship. What did you see 
of the ship ? Did you see the sails? A. I saw a sail which looked 
to be very small. 

The Court — I would like the captain to put down on a diagram the 
course and position of the vessels. 

Mr. McAllister — We have a rough diagram here, which perhaps 
we can show it by. 

Q. Look at that diagram , captain and see if that is correct. [Hand- 
ing diagram to the witness.] A. It is very rough, but it indicates 
the positions. 

Q. You went right across the bow of this vessel ? A. Yes, we en- 
deavored to go across the bow. 

Q. You took her bowsprit and headgear ? A. Jibboom, bowsprit, 
and part of the bow, the bow striking abaft amidships. 

Q. Now, captain, in reference to this matter of light. What would 
be the light that she should have exposed to you as you approached ? 
A. A red light. 

66 Q. Did you see any any red light from this bark? A. No, 
not until 1 got close to her. 

Q. Did you see it then ? A. Then I saw what I took to be the red 
light, but very dim. 

Q. Who saw that light first ? A. The second ofiicer — I saw a light 
first. The second officer said he thought it was a red light. 

Q. How long was that before the collision? A. Less than a 
minute. 

Q. How do you account for the fact that you did not see that 
light before? A. Either the light was not there or else it was hidden 
by something. We were looking right at the vessel. 

Q. You saw the vessel ? A. We saw the vessel continually. 

Q. From your sight of the vessel were you able to tell what course 
she was pursuing? A. Not till she was close aboard. She was 
coming nearly end onwards towards us. 

Q. What was your judgment, from what you saw there, as to the 
course of this vessel? A. I determined from what I could see that 
the vessel was going the same as we were ; steering in the same di- 
rection as we were. Not seeing any lights I did not have any idea 
that she was doing anything else. 

Q. You thought she was on the same course as you were ? A. 
Yes, or nearly so. 

Q. And if you pursued your course you would clear her? A, 
Yes, sir. 



30 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. If you had seen the red light what -would that have indi- 

67 cated to you? A. That she was crossing our bow, and I could 
easily have avoided her, or attempted to do so any how. 

Q. After you saw this light which the mate suggested was a red 
light, and in which you finally concurred, did you have time enough 
then to stop? A. No, she was close enough then to see the speed 
of the bark. When I saw what I took for the red light, I could see 
what we call the bone in her mouth — I could see the water that she 
was making on her stem — we were approaching each other so fast. 

Q. What speed do you think she was going? A. Not less than 
five or six knots. 

Q. What was your speed at the time? A. Thirteen. 

A. You were apnroaehing each other with a joint speed of eigh- 
teen knots? A. Yes, sir. 

The Court — When you saw the vessel a minute before the col- 
lision did you give any orders to slow? A. No, sir. 

Q. Why did you keep on ? A. I remarked to the second officer 
that it would be impossible to clear her any other way than to get 
across her bow. I said " it is too late to do anything else, we must 
try and get across her bow." It was the only way to avoid a col- 
lision. 

Q. What would have been the effect of backing? A. Stopping 
the steamer right across the vessel's bow. It would be like holding 
her for the vessel to have run into her amidships, which would have 
sunk us. 

Mr. McAllister — You thought it Avas the best course to go 
ahead, and get over across her bows? A. In the short time 

68 that I had I thought that was the only way to avoid a col- 
lision, if it could be avoided. 

Q. Supposing this vessel had previously to being so close exhibi- 
ted a torch, would that have helped you in your movements or cal- 
culations ? A. It would have shown a glare on the sails, and would 
have shown me the direction the vessel was steering. 

Q. Was any torch exhibited? A. No, no light whatever on board 
until we got close aboard. 

Q- How long had this man who was on the bridge been second 
officer — what was his name ? A. Stephens. 

Q. How long had he been second officer? A. I. do not know ex- 
actly. He had been second and third officer for a couple of years. 

Q. How old a man was he? A. I should judge about thirty-five. 

Q. He is here now ? A. Yes, sir. 

Q. You and he were on the bridge ? A. Yes, sir. 

Q- Do you recollect the name of the quartermaster at the helm ? 
A. No, sir. 

Q. Do you recollect the name of the quartermaster on the look- 
out? A. No, sir. 

Q. On what deck does this man on the lookout stand ? A. On 
what we call the hurricane deck. 

The Court— Cannot you find out by your crew list the names of 
these men? A. Yes, but I do not recollect at this time. 

Mr. McAllister — The captain has just come in this morning 
from sea. 



AMERICAN BARKENTINE PORTLAND. 31 

The Court — It is important the names should be ascertained. 
G9 A. They can bo ascertained at once. The second officer 

is here, and he knows the name of both. One of the quar- 
mjisters himself is here. 

Q. Was there any one in the pilot house besides the quartermas- 
ter? A. No one in the pilot house but the quartermaster at the 
wheel. 

Q. The nearest man to him would be yourself, and the second 
mate, who was on watch at the bridge? A. Yes, sir. 

Mn. McAllister— Q. AVere there any stars out that night, or 
was it overcast? A. Occasionally there were stars, but the general 
condition of the night was covered overhead; some little mist, damp 
enough for rain. 

The Court — There was no difficulty in seeing the light if it had 
been there ? A. No, because we could see the Farralones light. 
The North Head light was in sight, and the Fort Point light. 

Mr. McAllister — Those lights are the lights of a light house ? 
A. Yes. 

Q. They are heavier than the side lights of a ship ? A. Yes, sir. 

Q. They are heavy reflecting lights ? A. Yes, sir. 

Q. I want to know what amount of vigilance you were exercising 
in looking after vessels as you came in ? A. We were both on the 
bridge for that purpose, looking out ahead, and watching for any- 
thing that we could see, the same as two men would always 
70 be, looking out on the bridge. We could not do anything 
else but look out. We were always looking forward. 

Q. You did see this sail about five minutes before the collision ? 
A. Yes, sir. 

Q. Did you get much of a view, or how much of a view did you 
get? A. We saw there was a sail. Not seeing any lights we made 
up our minds — I made up my mind — that she was going the same 
way we were. 

Q. If she had been going in the same way that you were, and you 
pursued your course would you have gone clear? A. Yes, sir; she 
Was two points off the starboard bow. It did not seem to change 
its relative position for quite awhile; that is, two or three minutes. 
I saw that she was coming a little towards us. I thought she was 
going the other way. 

Q. If she had, a short time before the collision, luffed up, or 
changed her course, what would have been the effect of that so far 
as producing the collision? A. It would throw her right in our 
way. Every part of a point that she luffed up, it lessened our 
chance of getting across her bow. 

Q. The more she kept off, it would have lessened the chances 
of the collision ? A. Yes, sir. 

Q. They swear they did luff up before the collision? A. That 
threw her more in our track. 

The Court — Was this matter investigated by the inspectors? A. 
Yes, sir. 



(An adjournment was here taken until a quarter past two.) 



32 PACIFIC COAST STEAMSHIP COMPANY VS. 

71 AFTERNOON SESSION. 

G. Debney, recalled. 

Mr. McAllister — Q. You did not stay by this vessel, the bark- 
entine, after the collision? A. No, sir. 

Q. Why not? A. On account of the damage to the steamer. I 
had all I could do to stop the water from going into the steamer and 
sinking us. 

Q. Did she strike a leak after this collision? A. Yes; cut a hole 
larger than those doors, and every time she rolled the water rushed 
in. Sometimes the hold was three feet under water. 

Q. It was in consequence of looking after the safety of your ves- 
sel and passengers that caused you to go on ? A. Yes, sir. 

Q. Did you send out a tug to her ? A. Yes; as soon as I came 
in I telephoned to the tug boat office and sent a tug after her. 

The Court — What steps did you take ? A. I went to the engine 
room and found when she rolled down that the water rushed into 
the hold, and when she rolled back none came in. I took the pre- 
caution of keeping the vessel end onto the sea, so that she would not 
roll, as soon as I could, and moved the freight. I had a large quan- 
tity of deck freight, and freight in the steerage. I sent the officers 
and crew away from the boats, and had all hands, steerage passen- 
gers and all, moving freight so as to give her a list to port, and I 
came in in that way. 

72 Q. Where was the hole, on the port side ? A. Oq the star- 
board side. 

Mr. McAllister — Your vessel suffered heavy damage by this col- 
lision? A. Yes, the vessel was seriously injured, very dangerously 
so. 

The Court — What damages do you claim ? 

Mr. McAllister— I think our damages are about SSnOO or $9000. 

The Witness — We were fully loaded with wheat and flour; heavily 
loaded. 

Cross Examhiation. 

By Mr. McGraw — Q. What is the tonnage of the State of Cali- 
fornia ? A. Net or gross ? 

Q. Gross tonnage ? A. 2260. 

The Court — ^What do you call the gross tonnage? A. The gross 
tonnage includes all except the engine-room, cabin accommodation, 
house on deck; net tonnage with those deducted. 

Q. Her carrying capacity ? A. Ye=?, sir; her carryinct capacity. 

Q. What is her registered tonnage? A. Net it is 1260. 

Mr. McGraw — By net tonnage you mean the freight tonnage ? 
A. Yes, her measurement. 

Q. What distance were you from Point Reyes at the time of this 
collision? A. Between 16 and 17 miles. 

Q. You say you passed Point Eeyes about half past two? A. I 
said about half past two. 

Q. What course did you steer from Point Beyes ? A. 

73 East southeast. 

Q. When did you change your course ? A. Once at three 
o'clock; once at half -past three. 



AMEEICAN BARKENTIXE P0RTLA>;D. 33 

Q. At three o'clock you chaQgecl your course to what course ? A. 
East. 

Q. At half-past three to what course ? A. East northeast. 

Q. And YOU were steering east northeast at the time of the colli- 
sion ? A. Yes, sir. 

Q. After you first sighted the sails of the "Portland,"' did you 
give any orders at all as to the course you were steering? A. No, 
sir. 

Q. You did not slacken speed ? A. No, sir. 

Q. Nor reverse? A. No, sir. 

Q. Nor change your course ? A. Nor change our course. 

Q. You say that when you first sighted this barkentine you sup- 
posed that she was going in the same way as you were ? A. That is 
what I said. 

Q. Were you aware of the rule of law making it your duty to keep 
out of the way under those circumstances? A. Yes, sir; I was 
aware of that. I was aware also she should have a light to indicate 
which way I should go to keep out of her way. 

Q. At, and previous to the collision, I understand you had a 
quartermaster on watch at the bow ? A. Yes, sir. 

Q. Was any member of the crew on watcla, in or near the pilot 
house? A. No, sir; that is, you mean outside of the pilot house. 

Q. In or near the pilot house? A. Aquartermaster at the wheel, 
that is inside the pilot house. 

Q. The man at the wheel. No one beside him ? A. He is not 
on the lookout. He is at the wheel. 

Q. Is the quartermaster on the bow a licensed pilot? A. No, 
there is only one licensed pilot aboard. 

Q. Who is that? A. Myself. 

Q. The mates were not licensed pilots ? A. There was only one 
pilot on board. The mate is a licensed pilot, I believe. He was 
not piloting the vessel. He was not acting as a pilot, and does not 
act as a pilot, still he has a license. He is not in that capacity on 
board of the ship. 

Q. Has he a license from the United States Board of Inspectors ? 
A. Yes, sir. 

Q. You have a license from the United States Board of Inspect- 
ors? A. Yes, sir. 

Q. And the mate has one ? A. And the mate has one but he does 
not act in that capacity on board. 

Mr. McAllister — Q. When you say " mate," 3'ou mean "first 
officer"? A. Yes, sir. 

Mr. McGraw — Q. Is any one else on your ship a licensed pilot ? 
A. Not that I know of. The Columbia River bar pilot may have 

one. I do not know whether he has or not. 
75 Mr. McAllister — Q. Is there a Columbia River bar pilot 

on board always? A. Yes, he does not act in any capacity, 
only on the Columbia River bar. 

Q. He is always on board ? A. Yes, sir, he sleeps on board. 

Q. He makes the voyage? A. He makes the round voyage. 

Mr. McGraw— Q. Is he a United States or a branch pilot? A. 
I do not know. 



34 PACIFIC COAST STEAMSHIP COMPANY VS. 

Mb. McAllister — He is a State pilot, of course. 

Mr. McGraw — He was not on deck at the time of the collision ? 
A. No, sir; he was in bed at the time of the collision. 

Q. The first mate was not on deck at the time of the collision ? 
A. He was in bed also. 

Q. What person called your attention to the " Portland," the first 
time ? A. The report from the lookout. 

Q. You did not see her until your attention was called to her 
by the lookout ? A. No, sir. 

Q. How did the lookout report, by hailing you, or by coming 
bark? A. By hailing, " Sail on the starboard bow." 

Q. Where was he when he hailed you? A. On the lookout. 

Q. In the bow? A. At the bow, that is near the bow. 

Q. What answer did you make to that report, any? A. I belieye 
there was no answer made the first time that he reported, and he 
reported it again, and I answered him "All right." 

Q. Did you hear his report the first time? A. Yes, sir. 

76 Q. When he reported the second time where was he? 
A. On the bridge looking at the sail. 

Q. Then he came back from the bow? I do not know whether 
he did or not. I could not say. I heard the report. I was not 
watching him. 

Q. I asked where he was when he made the report ? A. I could 
not say. He was forward somewhere. I do not know whether he 
stepped back. 

Mu. McAllister. — Q. You do not mean to say this man was on 
the bridge? A. No, sir. 

Q. You said so. A. I understood him to ask where was I 
when he reported the second time. I answered on the bridge look- 
ing at the sail. 

Mr. McGea.w — From the point where the lookout was stationed 
how far was it to the bridge ? A. Fifty feet. 

Q. Did the lookout when he came back to you state that be 
hailed you three or four times with "A vessel on the starboard 
bow," and could get no answer ? A. I never said the lookout came 
back. You said that. I never said it. 

Q. You say now you do not know when he came back? A. That 
is what I say. I do not know whether he came back or not. I heard 
the report. I did not see him. 

Q. When you heard the second report, did he tell you he had 
hailed three or four times, and could get no answer ? A. No, sir. 

Q. How far off would the Portland be at the time you first saw 
her ? A. A little over a mile. 

77 Q. Did you testify before Supervisor Inspector Beamish, 
that you considered she was a mile and a half or two miles 

off? A. Did I what? 

Q. Did you testify before Inspector Beamish on the investigation 
of your conduct on account of this collision, that you thought she 
was a mile and a half to two miles off? A. I might have said that. 
I say now she was somewhat over a mile. You can easily tell. It 
took four or five minutes to get together. We travel a mile in five 



AMEEICAN BAEKENTINE PORTLAND. 35 

minutes. The bark was coming some too. It would be a mile and 
a half. 

Q. You think probably she was a mile and a half or two miles ofl"? 
A. Yes, as near as I can figure. 

Q. At the rate you were going, about 13 miles an hour, how long 
would it have taken you, if you reversed your engines, to have 
brought your ship to a dead stop. What distance would it have 
taken you? A. She would have gone probably five times her 
length. 

Q. What was her length ? A. 315 feet. 

The Court — Q. You were going before the wind ? A. The wind 
was on the bow. The wind was about two points. 

Q. You were sailing east northeast? A. The wind was northeast. 
The wind was north by east. We had the wind abaft the beam, 
but not before the wind. 

Mr. McAllister — Did you have your sails set ? A. No sails set. 

Q. How was the tide? A. The tide was ebb; strong ebb. 

Q. The tide was against you? A. Yes, sir; I recollect, I think, 
when I came to the wharf it was strong ebb. 

78 Mr. McGraw — Q. By reversing your engines you could 
have brought your steamer to a dead stop at a quarter of a 

mile ? A. I do not know whether that makes up a quarter of a mile. 
I gave the answer once. 

Q. Four times in length would be 1,260 ? A. That is my answer 
to it. 

Q. You say three or four times its length. Do you mean tliere 
would be that difference between the distance as the circumstances 
varied, as the tide or wind was for or against you? A. I meant at 
that particular time in the way we were going with the wind and 
sea, she would have gone that distance through the water. 

Q. Through the water after you had reversed your engines? A. 
Through the water after she had reversed her engines full speed. 
The weight of the ship had a great deal to do with it. W^e were 
loaded heavy. 

Q. The momentum ? A. The momentum. 

Q. After you first sighted this barkentine there was ample time 
to have fully stopped your vessel before the collision ? A. Yes, if 
I had seen the vessel — if I had commenced immediately to stop and 
back there was time. It is not customary to do that every time you 
see a vessel. 

Q. Was there anybody on the deck at the time of, or immediately 

before, the collision than the persons you have reported, to wit: 

yourself, the ofiicer on watch, the third mate, at the time of 

79 the collision ? A. The second mate. 

Q. And the man at the wheel , and the quartermaster at the bow? 
A. There was a passenger — I have heard a passenger say since 
that he was there. I do not know of it of my own observation. 

Q. Was there any other ofiicer or any other member of the crew ? 
A. No, sir. 

Q. After you first sighted this barkentine you gave no order what- 
ever ? A. No, sir. 

Q. Up to the time of the collision ? A. No, sir. 



36 PACIFIC COAST STEAMSHIP COMPANY VS. 

Ee-direct Examination. 

By Mb. McAllister — Q. How was the wind that night; from 
what quarter was it? A. North by east, as near as I could judge. 

Q. This hole that you speak of which was the effect of the col- 
lision on your vessel, where was it? A. On the starboard side, at 
the after end of the boiler; abaft amidships. 

Q. To what extent were the planks broken there ? A. The iron 
plates were — I do not know the exact measurement. I should judge 
it would be eight by ten. The hole was eight by ten. 

Q. Eight inches by ten? A. Eight feet by ten feet. Ten feet 
long and eight feet deep. 

Q. Does that give you any indication? Can we deduce any indi- 
cation from the speed at which the barkentine was going when she 
struck? A. Yes; I think a great deal is to be learned from 

80 that. Considering also the speed of the steamer, taking 
the vessel round, it shows that she was going fully as fast as 

I claim she was, between five and six knots. 

Q. What amount of cargo did you have on board, the number of 
tons? A. We had, I think, 1,500 tons, mostly wheat; between 
1,400 and 1,500 tons, wheat and tldur. 

Q. You said at the time of the collision you thought you were 
steering east northeast. I want to know if you were correct. I 
thought your course was east by north ? A. Either east by half 
north or east northeast. I know it was changed. I know that is 
the course that we steered for the North Head. We were steering 
for the North Head. 

Q. You say no member of the crew was on watch near the pilot 
house ? A. No, sir. 

Q. Now this bridge on which you and the second mate were stand- 
ing, is close to the pilot house? A. Yes, it is close to the pilot 
house, directly abaft the pilot house. 

Q. How do you get on to that bridge ? A. By a ladder by the 
side of the house. 

Q. By the side of the pilot house ? A. No; it runs aft. It runs 
by the side of the house. 

Q. When you were on that bridge how far abaft are you of the 
pilot house ? A. Immediately abaft the pilot house, standing 
right by it. 

Q. Close to it? A. Close to it. 

Q. But above it ? A. It is just about like this counter — the 

81 pilot house is. 

Q. The top of the pilot house, as you stood on the bridge, 
would come about your middle ? A. Yes, sir. 

Further d'oss Examination. 

By Mr. McGraw — Q. About this course that you were steering, 
did you not testify before the supervising inspectors, that you were 
steering east by north, at the time of this collision ? A. No, I do 
not think I did. 

Q. As to the direction of the wind. Do you suppose that you, be- 
ing on a steamer not under sail, and travelling at the rate of 13 



AMEKICAN BAllKEKTINE PORTLAND. 37 

miles an hour, you could judge of the direction of the wind as well 
as an officer on a sailicg vessel sailing on the wind? A. Yes, sir; 
I do not see why I could not. I might not tell the direction of the 
wind. 

Q. You say the wind was a six or seven knot breeze, and you were 
going at the rate of 13 miles an hour nearly against it? A. Who 
said it was a six or seven knot breeze ? 

Q. Did you not? A. No, I did not. I testified that the wind was 
travelling about ten or twelve miles an hour. 

Q. 12 miles an hour? A. 10 or twelve. That is what I believe 
I tHstified. 

Q. I misunderstood you if you did. Supposing the wind was 
travelling at the rate of 12 miles an hour, the wind was ahead of 
you? A. It was abaft the beam, and if we were heading east north- 
east. 

82 Q. Abaft your beam ? A. Yes, sir; east northeast at right 
angles would be north northeast. North northeast, it would 

be on the beam ; if it was north by east it would be a point abaft 
the beam. 

Q. North northeast is at right angles with east northeast ? A. It 
comes very near being that. 

Q. Is not north at right angles to east? A. Yes, sir; that is what 
it is. 

Q. How can you get the right angle that you figure out between 
those courses? A. East northeast and north by east will give it a 
point forward. 

Q. It would give it a good many points forward? A. No; if you 
get a little comjjass it will not take long to determine. 

Q. Do you have to look to a compass to tell that ? A. No. 

Q. It would be pretty near a head wind, about three points off of 
the bow ? A. East northeast. 

Q. It would be about four points off the bow ? A. Four points 
off the bow. That would be north northeast. North northeast 
would be five points. 

Q. The wind meeting you at the rate of 12 miles an hour, and you 
going against it at the rate of 13 miles, how do you estimate the 
course of the wind ? A. That would be pretty near a 25 knot 
breeze, if it was directly ahead. 

Q. How do you tell it when you are travelling at that speed ? A. 
By being accustomed to it; by being on board of the steamer 

83 all the time; bv judging; by knowing what kind of a breeze 
we go with. When we go with it we know how the breeze is 

blowing. When we go just as fast as the wind, it gives us a good 
idea. 

Q. You do not think the master of a sailing vessel who depends 
on the wind for his propelling power would be a better judge than 
you, being on a steamer ? A. I said the master of a sailing vessel 
would not be better. 

Q. I asked you if the master of a sailing vessel would not be 
better able to judge than you were? A. I said no. I did not say 
he was not capable of judging. 

Q. You think you would be equally as capable of judging as the 



38 PACIFIC COAST STEAMSHIP COMPANY VS. 

master of a sailing vessel, who would be relying on the wind for his 
propelling power ? A. Yes, sir. 

Q. And would be making equally as careful observations as to the 
course of the wind? A. No, that is something I did not say as to 
the direction of the wind. Our speed would change it. As regards 
the force, we have a pretty good idea of determining the force of the 
wind. 

Q. Supposing the wind to have been as you suggest, north by 
east, what would have been the nearest course which a sailing ves- 
sel could have laid running for the harbor of San Francisco ? What 
was the nearest course you would have taken from where that bark- 
entinewas? A. That would be a fair wind; she could lay up for 
the South Heads. 

84 Q. You say you were heading directly for the Head lights? 
A. Yes, we were heading for the North Head. 

Q. Your course was east northeast ? A. Yes, sir. 

Q. How far were you from the Heads? A. About 10 miles. 

Q. How many points do you allow for a vessel sailing as close to 
the wind as she can, an ordinary vessel? A. Five points to a fore- 
and-aft vessel. Those coasting vessels will go five points. 

Q. Say a barkentine. A fore-and-aft vessel can sail closer than 
either a barkentine or bark? A. Yes, sir. 

Q. Say an ordinary barkentine, how many points would it be nec- 
essary to allow ? A. They will lay up within five. 

Q. Allowing five points, and allowing the wind to be north by 
east, what would have been the cour.se of a vessel standing on the 
wind and heading for the harbor of San Francisco, from the point 
at which you saw that barkentine ? A. You want to know how many 
points — five points is from the north by east ? 

Q. I want to know what her course would have to be? A. That 
would be east northeast. 

Q. And east northeast is fivepoints to the eastward of north by east? 
A. Yes, sir. 

The Court — Is it not ? 

Mr. McGraw — I think it is only 4. 

Q. If the wind was about northeast instead of north by east at that 

time, it would not have been probable that a vessel would have 

headed toward the harbor of San Francisco tacked on that 

85 point? A. I do not know what you mean. 

Q. The wind being northeast the vessel could not have made 
the harbor of San Francisco from that point ? A. I did not say the 
wind was northeast. 

Q. I say supposing it was ? A. No, she could not have headed up 
in that tack, on the port tack. She would have headed across the 
harbor more. 

86 Charles Stephens, called for the claimants, sworn: 

Mr. McAllister — Q. You were second mate of the steamship 
" State of California ?" A. Yes, sir. 

Q. How long have you been going to sea ? A. About eighteen 
years. 



AMERICAN BAKKENTINE PORTLAND. 39 

Q. How loug have you been mate ? A. I Lave been second mate 
and third mate, and mate for the last twelve years. 

Q. How loug mate on board a steamer? A. I mean on 
steamers. 

Q. How long have you been traveling in this coast trade as mate ? 
A. Twelve years. 

Q. How long were you mate of the steamship " State of Califor- 
nia " previous to this voyage when this collision took place? 
A. A little over four years — tour years and a half. 

Q. Your vessel on this voyage was bound for San Francisco. A. 
Tes, sir. 

Q. Did you have a full cargo on board, or how much of a cargo ? 
A. A full cargo. 

Q. What amount of cargo do you suppose she had on board. 
How many tons? A. I suppose somewhere between 1,300 and 
1,400 tons. I do not know exactly the amount. I know she 
was full. 

Q. What lights was the steamer ' State of California " carrying 
that night? A. A bright masthead light, a green starboard light, 
and a red one on the port side? 

87 Q. Had she those lights up all night ? A. Yes, sir. 

Q. Were they up at the time of the collision ? A. Yes, sir. 

Q. When did you come on deck that night? A. About two or 
three minutes past four. 

Q. Was it your watch on deck from four to eight ? A. Yes, from 
four o'clock to eight o'clock in the morning. 

Q. What position did you take when you came on deck a few min- 
utes past four ? A. I went up on the bridge, relieved the third offi- 
cer, and took my position on the bridge amidships. 

Q. That is the bridge close to the pilot house ? A. Yes. 

Q. Who else was on the bridge besides yourself ? A. The captain 
and the third officer. 

Q. When you took the third officer's place he left? A. Yes, sir. 

Q. You and the captain remained on the bridge? A. Yes, just 
for about a minute the captain remained there. 

Q. What were you doing on the bridge ? A. I looked at the com- 
pass first to see how she was heading. That is the first thing I do 
after I relieve the officer, then I kept a bright look out for vessels 
and lights. 

Q. What was the first notice that you had of any sail near ? A. 
The man on the lookout sang out. 

Q. What did he cry out? A. " Sail on the starboard bow." 

Q. After he so cried out did you perceive this sail ? A. I did at 
the same instant. 

Q. What did you see, the hull? A. No, only a dark object. I 
could made out that it was a sail. 

88 Q. Did this dark object have any lights that you could see ? 
A. No, sir; none visible. 

Q. Did you look closely for lights? A. Yes, sir. 

Q. Did you see any ? A. I could see none. 

Q. How long previous to the collision did you discover any light 



40 PACIFIC COAST STEAMSHIP COMPANY VS, 

on board this sail? A. I should judge a minute more or less; may 
be a few seconds; either way. 

Q. What did you see then ? A. I see a dim red light. 

Q. Was the captain with 3'ou at that time on the bridge ? A. 
Yes, sir; he was there at the time when we sighted the lights. 

Q. If that red light had been in good condition would you have 
seen it before? A. Why, I should think I ought to see it two 
miles in that kind of weather. 

Q. What was the character of the weather? A. It was dark, 
cloudy, overcast weather. It had been misty with a light shower 
just previous to four o'clock. 

Q. How was the wind that night ? A. Somewhere about north or 
maybe a little to the east. I could not exactly tell to half a point 
or a point. 

Q. How fast would a barken tine, carrying such sails as she 
should carry in that weather, be going in that breeze ? A. My 
opinion is she would go about six miles or more. 

Q. When you saw this red light did you and the captain 

89 have anv conversation about it? A. Nothing, that I remem- 
ber. We had not time to have any kind of a conversation 

because it was too close. 

Q. After you saw that red light could the steamer, from your 
knowledge of the time that it takes to stop her, have been stopped 
in time to avoid the collision ? A. I do not think it. 

Q. After you saw the red light could the collision have been 
avoided by the steamer ? A. No, sir; the only thing to be done was 
us running into her, or her running into us, that 1 could see. 

Q. What do you think about the propriety at that time, of keep- 
ing on your course ? A. The object was in trying to cross her bows. 

Q. Did you consider that was the best chance ? A. That was the 
only safety there was. If we tried to go the other way we would 
run into her. That would have been a sure thing. That we could 
not do. 

Q. If you had run into her what would have been the effect? A. 
The effect would have been, there would have been more damages 
and injury to life. 

Q. You agreed with the captain that the best course was to keep 
on ? A. Yes, sir. 

Q. And try to cross her bow? A. Yes, sir. 

Q. Was any torch exhibited from that vessel that night? A. No, 
sir. 

Q. If a torch had been exhibited would that have indicated any- 
thing to you? A. It would have indicated that the vessel 

90 was crossing our bows, and would have shown which direc- 
tion she was going. 

Q. How would it have shown which direction she was going? 
A. It would have illuminated the sails, and we could have seen 
which direction she was going. 

Q. By showing her sails more clearly? A. Yes, sir. 

Q. No torch was shown ? A. No, sir. 

Q. Do you remember how the tide was that night? A. I don't 
remember. I think it was ebb when we came inside. 



AMF.UICAN BAEKENTINE PORTLAND. 41 

Q. Do you know what amount of damage was done to your 
steamer, and where the damage was doue to her by this colhsion 
between you and the barkeufine? A. I don't know exactly the 
amount ot damage, that it wonki cost. I could give you an idea. 

Q. What was the nature of it, leaving out the question of cost? 
A. It was serious in my opinion. 

Q. Was it a hole? A. Yes, a big hole. 

Q. Where? A. Right over the boilers, a little abaft of it, nearly 
clear of it. 

Q. Did you look to see if it was a large hole ? A. Yes, a large 
hole. 

Q. How large ? A. You could drive a horse and buggy almost 
through it. 

Q. Did your vessel leak under this condition? A. Yes, sir. 

91 Q. What was done to give her a list to port? A. Lots of 
freight, hides and oysters, very heavy freight on deck was 

shifted over to port. 

Q. Shifted over to the port side? A. Yes, sir. 

Q. To give her a list to port? A. Yes, sir. 

Q. After you listed to port you came right in in that way? A. 
Yes, sir. 

Q. Did you hear, as you appi'oached tlio barkentine, any person 
crying out or making a noise? A. No, sir; only on the barkentine. 
Do you mean ou the steamer or the barkentine ? 

Q. On the barkentine? A. Yes, sir; on the barkentine they 
were hallooing. 

Q. How close were you to them then ? A. As close, pretty near, 
as that door. 

Q. Close aboard of them? A. Yes, sir. 

Q. When you saw this sail, and made out no light, what was 
your judgment as to the course this sail was pursuing? A. My 
opinion was that she was heading in the same direction as we were. 

Q. If she had been, and that judgment had been correct, would 
the course that you were pursuing on the steamer, have cleared her? 
A. Yes, sir. 

Q. How many points were you steering, as it were, away from 
her? Q. Between two and two and a half when we first discovered 
the vessel. 

Q. That would have carried you how far to the starboard of her? 
A. It would have carried us about a mile, 1 should think. 

92 Q. You had no idea she was on the wind until you saw the 
red light ? A. Not until I saw the red light. 

Q. How long was that before the collision? A. About a minute, 
more or less, 

Q. Then in your judgment nothing could be done ? A. Nothing 
could be done without trying to run across her bows. That was the 
only thing to be done. 

Cross ExumincdiGn. 

By Mb. McGraw— Q. When you first sighted the lights of this 
vessel, in what direction was she from the steamer? A. About two 
points or two and a half points on her starboard side. 



42 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. When you first saw her ? A. When I first saw the vessel ? 

Q. Wheu you first saw her lights'? A. About three miles, I 
should judge 

Q. Oil the starboard bow? Q. Yes, sir. 

Q. You thought she was heading the same way you were ? A. 
When I saw the lights I knew which way she was heading then. 

Q. When you saw the vessel? A. I thought then she was head- 
ing the same way as we were. 

Q. She was heading two points on the starboard bow ? A. When 
we first saw the vessel she was two or two and a half. 

Q. You say if she had been heading for San Francisco and 

93 you kept your course, you would have passed half a mile 
to the starboard of her? A. Somewhere about that. That 

is about the distance I judge at first. 

Q. Do you not think you would have gone to port of her a good 
way ? A. We left the vessel on our starboard side. 

Q. You would have gone to port of her? 

Mr. McAllisteu — That was my mistake; not his. [To the wit- 
ness ] Y^ou would have left her on your starboard side ? A. Cer- 
tainly we would have left her on our starboard side. 

Mk. McGraw — Q. What direction was the steamer in when you 
took command of her? A. East by north, half north. 

Q You testified before the Inspectors on the examination of Cap- 
tain Debney ? A. Yes, I testified. 

Q. Did you testify that her course was east by north, half north? 
A. Somewhere about it. I do not exactly recollect. It is a year 
and a halt ago. It is only a half a point difference 

Q. Did you enter the course on the log book ? Who entered that ? 
A. Tliere is the course on the log book. 

Q. Did you testify from looking at the log book? A. I did not 
look at tlie log book. I kuow what course I got when I came on 
deck. When I relieve the officer I generally see how she is head- 
ing. 

Q. How far away was this bark when you first saw her? A. My 
estimation was that she was about a mile and a half away, more or 
less; somewhere about that. 

94 The Court — How did she bear from you ? A. About two 
points or two points and a half. 

Mr. McGkaw — Q. Did you see any of the shore lights when you 
came on watch? A. Yes, sir. 

Q. What lights did you see? A. Point Bonita, Point Reyes. 

Q. The Farallones? A. I don't remember seeing the Faralloues. 

Q. Did you see the Telegraph Hill Lights ? A. I could not ex- 
actly swear to it. I saw a lot of lights besides Fort Point. I don't 
remember whether it was Telegraph Hill; some lights at the Cliff 
House. 

Q. When the lookout first reported this vessel, where was he? 
A. The lookout was forward. 

Q. Did he hail from forward ? A, Yes, sir; he hailed from for- 
ward. 

Q You heard him? A. Yes, sir. 



AMERICAN BARKENTIXE PORTLAND. 43 

Q. Did he after^^arcls report again? A. Yes, sir; be reported a 
second time. 

Q. Where was he when be made the second report? A. Forward, 
somewhere forward of the pilot house. 

Q. He did not come back to the bridge? A. He never comes to 
the bridge. He comes somewhere near the pilot house. 

Q. What is the name of the lookout? A. Charles Doran. 

Q. Is he here? A. Yes, sir; he is here. 

Be-Direct Examination. 

By Mr. McAllister — Q. I want to read from the notes before 

95 the local Inspectors what you said about the course. "Q. Do 
you know the course she was taking? A. East by north, half 

north, by standard compass." You say that if she had been going, 
as you and the captain supposed she was, on the same course, and 
you had kept your course you would have passed on your starboard ? 
A. Yes, sir; we would have left her on our starboard side. 

96 Charles Doran, called for the claimant, sworn. 

Mr. McAllister — Q. How long have you been an able 
seama" ? A. To my knowledge for the last ten years. 

Q. How long have you been quartermaster on these steamers 
previous to this collision ? A. About fourteen months on the 
"Stite of California," previous to the collision. I was on the 
" Queen of the Pacific " before. 

Q. How long were you on the "Queen of the Pacific " as quarter- 
master ? A. Four months. 

Q. You had been quartermaster for about eighteen months 
previous to this collision ? A. Yes, sir. 

Q. What time did you come on duty that night? A. Three o'clock 
in the morning I was on duty. 

Q. How long did your watch last? A. Until four o'clock. 

Q. Only one hour? A. Yes, sir; my watch is four hours, but my 
duty on the forecastle head is only for an hour that watch. 

Q. You came on duty as lookout at two o'clock? A. At three 
o'clock. 

Q. Your watch is from what time to what time? A. Twelve 
o'clock to four o'clock. 

Q. Your duty on the lookout is only one hour that watch ? 
A. Yes, sir. 

Q. That was from three to four ? A. Yes, sir. 

Q. While you were on the lookout where did you stand ? A. On 
the forecastle head. 

97 Q. That is the most forward part of the steamer ? A. Yes, 
sir. 

Q. What was the first thing that attracted your attention, what 
did you see ? A. Sail on the starboard bow. 

Q. When you saw that sail on the starboard bow, what did you 
see, the masts, or hull, or what did you see? A. I see nothing but 
a dark object; that is all I could make out. 

Q. You saw a dark object? A. Yes, sir. 



44 PACIFIC COAST STEAJtSHIP COMPANY VS. 

Q. Was there any light visible on that dark object? A. None 
at all. 

Q. When you saw that dark object on the .starboard bow, what 
notice did you give of it to the master or mate? A. I sang out "A 
vessel on the starboard bow." 

Q. Did you say " a vessel," or a " sail"? A. I could not recol- 
lect which I said, whether a vessel or a sail. It is all the same. 

Q. Did you get a response to that? A. I might have got it, but 
I did not hear it. 

Q. Did you give a second notice of it? A. Yes, sir. 

Q. In the same terms and words? A. In the same terms. 

Q. When you gave those two notices where were you? A. The 
first notice I gave was on the forecastle head, the second notice, I 
stepped back to the pilot house, where I got my answer that it was 
all right. 

Q. When you were thus on the watch between three and four 

98 o'clock, who did you see on the bridge, if any one ? A. I 
saw the third officer. When I came to report the vessel on 

the starboard bow I see the second officer and captain. 

Q. If this vessel had a red light on her port side, how was it you 
did not see it ? A. Because it was not good enough to be seen. I 
could not see no lights. There was none there to be seen at the dis- 
tance she was ofi". 

Q. How long previous to the collision did you see any light? 
Did you continue on the lookout up to the time of the collision ? A. 
Yes, sir. 

Q. How long previous to the collision did you see this dark ob- 
ject show a light? A. Less then one minute. 

Q. What light did you see then? A. I see a dim red light. 

Q. What was the character of that night ? A. It was dark and 
cloudy. 

Q. How was the wind? A. The wind was northerly. I could 
not give you the exact point of it. 

Q. What would be the speed of a bark sailing close hauled under 
that breeze that existed that night, in your judgment? 

jNIr. McGraw — Ask him if he ever sailed in a sailing vessel. 

Mb. McAllister — Did you ever sail in a sailing vessel ? A. Y''es, 
sir. 

Q. For how many years? A. I sailed for eight or nine years in 
a sailing vessel. 

99 Q. What would you judge would be the speed of a vessel 
in that wind sailing close hauled ? A. About six or seven 

knots in my judgment. 

Q. Did you notice where your steamer was struck by this col- 
lision ? A. Yes, sir. 

Q. What size bole it made ? A. It made a large hole. 

Q. Would that indicate at all the force at which the steamer was 
struck by the other vessel ? 

Mr. McGraw— I object to that question. 

Mr. McAllister — I will not press it. 

Q. What was done, if anything, with reference to protecting your 
vessel from leaking after the collision; any shifting of freight? A. 



AMERICAN BARKENTINE PORTLAND. 45 

As far as I can tell they were shifting freight. I remained on the 
lookout still. What orders were given I don't know. 

Q. You still remained on the lookout? A. Yes, sir. 

Q. Did you see any torch exhibited that night from the barken- 
tiue ? A. ISone at all. 

Q. Were you keeping a bright lookout all the time you were 
there ? A. Yes, sir. 

Q. Did you notice how the tide was that night, or did you take 
notice? A. I did not take notice. 

Q. Do you know what amount of cargo there was on board, 
whether she was full loaded ? A.I know she was full loaded; the 
amount of tonnage I could not say. 

Q. Was the position in which you were standing on the 

100 steamer the most favorable for the lookout ? A. Yes, sir; 
the most favorable. 

Q. There were no obstructions in the way of sails, or anything, in 
front of you ? A. No, none at all. 

Cross Examination. 

By Mr McGraw — Are you still employed on the "State of Cali- 
fornia " ? A. Yes, sir. 

Q. You say that on the night of the collision your watch was from 
twelve o'clock until four o'clock. Did you not turn in at four 
o'clock? A. I did not turn in before the steamer came in. My 
place was to turn in at four o'clock, but not that night. 

Q. Y'^ou say your place was to turn in at four o'clock? A. My 
place was to go to bed at four o'clock that night. I did not go 
to bed. 

Q. Did not anyone come to relieve you? A. No, I should have 
been relieved but I was not. 

Q. Were the bells struck on the steamer? A. Y"es, sir. 

Q. Y'^ou should have been relieved at eight bells, and no relief 
came, and you stayed on watch ? A. Yes, sir. 

Q. Was it before or after eight bells that you first sighted this 
vessel? A. About five minutes after four; somewhere in the neigh- 
borhood of that, as far as I can judge. 

Q. Eight bells had struck ? A. Yes, sir. 

Re-direct Examination. 

By Mb. McAllister— Why was it that you were not 

101 relieved ? A. I don't know how it was, probably through 
the other quartermaster. 

Q. It was simply a little delay? A. Y^es, sir; simply a little 
delay. 

Q. The rule is, you cannot leave until you are relieved ? A. No, 
you never leave until you are relieved from the lookout. 

Q. Y^ou have to stay there anyhow ? A. Yes, sir. 

Mr. McGraw — Q. When you hailed the bridge conveving the 
information of a sail, is it usual to get an answer ? A. The first 
time, as I told you, I could not hear the answer. 

Q. Is it usual for you to get an answer? Do you expect an answer 
when you hail the bridge ? A, Yes, sir, it is customary always. 



46 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. It is customary for the bridge to give an answer ? A. To give 
an answer when they hear it. 

Mr. McAllister — Q. It is usual when an order is given to say 
"AH right," or " Aye, Aye," or something of that kind '? A. "All 
right," or "Aye, Aye." 

Q, When you give notice to an officer, he does not always answer 
the sailor? A. Yes, sir. 

Q. If you say to an officer anything about the vessel, or a sail 
ahead, does he generally answer you "Aye, Aye" ? A. "All right," 
or " I can see it." 

Q. He always makes a response ? A. He always makes a remark. 

Mr. McAllister — With the exception of drawing this diagram 
that is our case. 
102 Mr. McGraw— We rest. 



(Testimony closed.) 



104 In the District Court of the United States, for the District 

of California. 

In Admiralty. 

A. M. Simpson et al., Libellants, ) 

vs. y 

The Amer'can Steamship "State of California," Kespondent. ] 

Pacific Coast Steamship Company, Libellants, 

vs. 
The American Barkentine "Portland, Kespondent. 

It is hereby stipulated that the deposition of Abraham Isaacs, 
witoess on behalf of Libellants in first above named case, and for 
claimants in second above named case, may be taken before South- 
ard Hoffman, Esq., Clerk of said Court, and Circuit Court Commis- 
sioner, at his office in the City and County of San Francisco, on 
Thursday, December 30, 1886, at two o'clock p. m., of said day, and 
when taken may be used in either of said cases, as if duly taken 
according to notice. 

San Francisco, December 28, 1886. 

EDW. W. McGRAW, 

105 Proctor for A. M. Simpson et al., and for Claimants of Portland. 

McAllister & bergin. 

Proctors far " Pacific Coast S. S. Co." 
Stipulated that within deposition may be taken in shorthand by 
J. F. Gawthorne and his notes of the deposition may be signed by 
witness, subject to all objections, except as to form of questions and 
mode of taking. 

E. W. McGRAW, 
Proctor for Barkentine Portland & Claimants. 

McAllister & bergin, 

Proctor for State of Cat. & Claimants. 



AMERICAN KARKENTINE PORTLAND. 47 

lOG District Court of the United States for the Northern District 

of California. 

A. M. Simpson et al. 

vs. 
Am. Steamship " State op California." 

Pacific Coast Steamship Co. 

vs. 
Am Babkentine "Portland." 

Be it remembered, that on this 30th day of December, a. d. 1886, 
at ray office, room 64, in the United States Appraisers' Building, in 
the City of San Francisco, personally appeared before me, Southard 
Hoffman, a commissioner, to take acknowledgments of bail and affi- 
davits, etc. , duly appointed by the Circuit Court of the United 
States for the Ninth Circuit and Northern District of California, 
Abraham Isaacs, a witness on behalf of A. M. Simpson et al. and 
Bkt. "Portland" in the above entitled suit. 

E. W. McGraw and C. Page, Esqs., appeared as proctors for A. 
M. Simpson et al. and barkentine " Portland, " and Hall McAllister, 
Esq., as proctor for Pacific Coast Steamship Co. 

And the said witness, having been by me first cautioned and 
sworn to testify to the truth, the whole truth, and nothing but the 
truth, in the cause aforesaid, did thereupon depose and say as fol- 
lows, that is to say: 

107 In the District Court of the United States, for the Northern 

District of California. 

A. M, Simpson et al., Libellants, 

vs. 
American Steamship "State of California," Eespondents. 

Pacific Coast Steamship Co. 

vs. 
Barkentine " Portland." 

San Francisco, Dec. 30th, 1886. 
Abraham Isaacs, called as a witness on behalf of libellants A. M. 
Simpson et al., and after being first duly sworn, deposed and testi- 
fied as follows, to wit : 

Direct Examination. 

By Mr. McGraw — What is your name, age and occupation? A. 
Abraham Isaacs, aged 42, and I am working in Captain Simpson's 
lumber yard. 

Q. What is your usual occupation ? A. Used to sailing on the 
coasters, but just last summer I have been working on shore. 

(.}. When were you last at sea ? A. Last spring, last April; 

108 last May I left the vessel here. 

Q. Do you know the barkentine ' * Portland ?" A. Yes, sir. 
Q. Were you on board of her last spring ? A. Yes, sir; I have 
been on board of her last spring. 



48 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. la what capacity? A. I was sailor before the mast, one of the 
crew. 

Q. An able seaman? A. Yes, sir. 

Q. Do you remember the collision between the "Portland " and 
the steamship "State of California"? A. Yes, sir; I remember 
that. 

Q. What time did you come on deck, the morning of that coUis- 
sion ? A. I'J o'clock at night. 

Q. You were in the mate's watch, were you? A. Yes, sir; I was 
in the mate's watch. 

Q. What tack was the ship on when you came on deck? A. 
Well, I think she was on the port tack when I came on deck, if I 
remember right. 

Q. Did she afterwards tack again ? A. Yes, afterwards she was 
going about again. 

Q. Which tack did she go on afterwards ? A. Her starboad 
tack. 

Q. What time did she go on the starboard tack? A. I could not 
remember what time, before 2 o'clock. 

Q. When she got on the starboard tack, how was she sailing, 
close to the wind? A. Yes, going close to the wind, by the wind. 

Q. Headed which way? A. I don't know, I didn't see the 

109 compass. I think she was west by north or something, for 
the wind was north by east. I could not remember exactly; 

I don't know really which way she was lying. 

Q. How long before the collision did you see the lights of the 
steamship State of California? A. For about 10 or 15 minutes, 
something. It was a good while before that I see her. 

Q. Whereabouts on the Portland were you when you saw the 
lights of the steamer? A. When I saw the steamer I was amidships, 
the same time I sftw the lights. 

Q. Were you for'ard of the mainmast, or abaft the mainmast? 
A. I was for'ard of the mainmast. 

Q. Who was with you there ? A. There was the two other men 
with me. 

Q. Do you remember the names of the men who were with you? 
A. Bob and Dan. 

Q. Who was at the wheel ? A. Another man was at the wheel, 
Andrew; I was the fourth man. 

Q. At what time did you last pump ship before the collision ? A. 
That was after we was gone about and I don't know how long; it was 
before the four bell. I think it was something before the four bell, 
for after we had been pumped out the mate was singing out for four 
bells ; the man was going to leave the wheel. 

Q. What light did you first see on the steamer ? A. I saw 

110 the white light first on the steamer, the top light, I think it 
was. 

Q. What light did you next see? A. The next I see, I see the 
side lights, the green light. 

Q. What next? A. Many of them see the small lights they say 

at the same time, through the side of the steamer, and just at the 



AMERICAN BAllKENTIXE PORTLAND; 49 

6ame time she turneJ, and then we saw the two side lights, and as 
it was clear they saw the whole steamer for a while after. 

Q. From thetime you first saw the lights of the steamer, what 
did you three men do who were amidships, after you saw the lights 
and up to the time of the collision ? A. The first we saw the lights 
we did not do anything; we was looking at the lights and we were 
just going to pump; just at the same time, if I can remember aright, 
the mate called up to the pumps and I went to the pnmps just right 
away, and hauleil up some water to fill the pumn. After that the 
steamer looks like to cross us, and Dan says: " You better stop on 
deck now and look out for the lights." 

Q. How long was that before the collisiou ? A. That was about 
ten minutes; something anyhow, for the whole time I was on deck, 
and the mate says at the same time he saw the steamer it was about 
15 minutes before, 15 or 20 minutes, he says. 

Q. Did you see the red light of the Portland after you snw the 
steamer's lights V A. Yes, sir; all the lights of the Portland 

111 was up; the barkentine was lighted up; red light and green 
light was out, two of them. 

Q. Could you see them from where you were on tlie deck? A. 
Yes, sir; I saw them all tiie time since I came on the deck; as soon 
as I turned my eye aft I saw the lights. 

Q. From the time that you first snw the steamer's lights up to the 
time of the collision, what was the condition of the lights of the 
Portland? A. They were good, those lights all the time; burn- 
ing clear all the time, bright light; I could not see anything else. 

Q. Did you see the lights of the Portland after the collision ? 
A. Yes, sir; the lights were still up on the Portland after the 
collision, until they took them in. 

Q. How were they barning. Q. They were burning good, clear, 
bright. 

Q. After you saw the lights of the steamer, was the red light of 
the Portl.uid taken down? A. No, sir; I could not see that, sir. 

Q. During that trip of the Portland, were the lights of the Port- 
land ever taken down to be trimmed during that watch ? A. I could 
not see that, sir. 

Q. I do not mean that night, but other nights. A. Every night 
we have been having the lights out, from the time we left San Fran- 
cisco up to the Columbia River; and back again we had the lights 
out every night from dark until daylight in the morning. We had 
them out every night. 

112 Q. When the steamer got close to j'ou, what did you men 
do, if anything? A. The steamer struck us. At first she 

struck us. The steamer's bow struck our jibboom and he turned 
us right around; and our bow struck the side of the steamer I think, 
for the steamer had a big hole in her when she came in. 

Q. Before the steamer struck you, did the men try and attract the 
steamer in any way? A. Yes; the steamer came so close the mate 
started to holler for the steamer, and all of us, to keep clear of us, 
or they would come on top of us. 

Q. Who hollered at the steamer — give the names of those that 
hollered? A. The mate, I and Bob; I could not remember: there 



50 PACIFIC COAST STEAMSHIP C03IPANT VS. 

was three of us, and Dan; there was three or four at the same time; 
they was hollering; the mate was up in the forecastle head and I 
was standing on the deck load. 

Q. Were you on watch? A. Yes, sir; I was on watch. 

Q. From 2 o'clock ■? Yes, sir. 

Q Who was on watch from 12 to 2 ? A. Bob; he had the look- 
out from 12 to 2. 

Q. Who was at the wheel from 12 to 2 ? A. Dan had the wheel 
from 12 to 2. 

Q. You were on the lookout then from 2 to the collision ? A. 
Yes, sir. 

113 Cross Examination. 

By Mr. McAllister — What countryman are you V A. Born 
in Finland. 

Q. How long have you been in America? A. I have been here 
for five years since I came here the last time. 

Q. How long have you been in Captain Simpson's employment? 
A. I was in the barkentine fifty days I think; I could not remember 
how long I was there, for I was aboard of her two or three weeks 
after she came in here, and cleared everything from the vessel, and 
I have been at work for him for last week and this week over in the 
yard. 

Q. Are you now in Captain Simpson's employ in the yard ? A. 
Yes, sir. 

Q. When do you expect to go away, if at all? A. I do not know, 
sir; if I get something to do, I would like to go up where I have 
been this summer, if 1 get something to do. 

Q. Who was at the wheel from 12 to 2 that night ? A. Dan. 

Q. And who was at the wheel from 2 to 4? A. Andrew, from 2 
to 4. 

Q. And when did you come on watch that night ? A. 12 o'clock. 

Q. And who was on the lookout from 12 to 2? A. Bob, from 12 
to •_'. 

Q. And who was on the lookout from 2 to 4 ? A.I was on the 
lookout from 2 to 4. 

114 Q. Where were the side lights of the Portland fastened, 
in the mizzen rigging ? A. In the mizzen rigging. 

Q. How high above the deck? A. 1 could not remember how 
high above the deck, six or seven feet. 

Q. What is the tonnage of the Portland? A. I could not tell 
how many tons. They had over 500,000 feet of lumber; between 
five and six. hundred thousand feet of lumber, 

Q. Why do you not speak English better? A. I can't doit. 
Swedish Italk better. I was born there. 

Q. How long do you expect to be in this country before you learn 
English ? A. I never expect to learn it. 

A. Isaacs. 



The foregoing deposition was by me read to the deponent and by 
him, in my presence, signed. 

SOUTHARD HOFFMAN, 
Jan'y 30, 1887. Comss. V. S. Cir. Ct., N. D., Cal. 



AMERICAN BADKENTISE rORTLAXD. 51 

[Endorsed.] Filed Jan'y 30, 1887. 

Southard Hoffman, Cleric. 

IIG (Title of Cause.) 

To McAllister & Bergin, for Claimant: 
You are hereby notified that James Donuelly will be examined, 
de bene esse, in the above entitled cause, on behalf of the libellauts 
before Southard Hoffman, Esquire, duly appointed by the Circuit 
Court of the United States for the Ninth Circuit, a commissioner 
for the District of California, to take acknowledgments of bail and 
affidavits, and also to take depositions of witnesses in civil causes 
depending in the Court of the United States, pursuant to Sectioa 
863 of the Kevised Statutes, on the 3d day of September, A. D. 1886, 
at 2 p. M., at the ofiice of said commissioner, No. — - U. S. Ap- 
praiser's Building, situated on the northeast corner of Sansome and 
Washington streets, in the City of San Francisco, in the District 
aforesaid; and you are hereby further notified to then and 

117 there appear and propound such questions to said witness as 
you may deem fit. 

The cause for taking the deposition of the above named witness is 
that he is a seaman, is about to proceed on a voyage to sea, beyond 
the jurisdiction of the Court, and cannot probably be present at the 
trial of said case. 

Yours, etc., 

E. W. McGEAW, 

Proctor for Libellauts. 
San Francisco, Aug. 30, A. d. 1886. 

[Endorsed:] Service of the within notice and a copy thereof is 
hereby admitted this 30th day of August, 1886. 

McAllister & bergin, 

Proctors for Claimant. 
Filed Sept. 3d, a. d. 1886. 

SOUTHARD HOFFMAN, 

Commr. U. S. Circuit Court, N. Dist. of Cul. 

118 (Title of Cause.) 

Agreed, That the deposition of James Donnelly, on behalf of 
libellant, to be taken before Southard Hoff"man, Esq. , may be taken 
in shorthand by J. F. Gawthorne, and the certified transcript of the 
notes of said Gawthorne of the testimony of said witness may be 
read in evidence with the same effect as if the deposition was taken 
in the form and manner prescribed by law, the signature of said wit- 
ness to his said testimony being hereby expressly waived. All ob- 
jections to except to the materiality or competency of the testimony, 
and objections appearing in the transcript of the testimony and 
made at the taking thereof, are waived. 

E. AV. McGRAW, 

Proctor for Libellant. 

McAllister & bergin. 

Proctors for Claimants. 



52 PACIFIC COAST STEAMSHIP COMPANY VS. 

119 District Court of the Uaited States for the Northern 

District of California. 

A. M. Simpson et al. , ] 

vs. V No. 

Steamship "State of California.") 

Be it remembered, that on this third day of September, A. D. 1886, 
at my olBce, Boom 64, in the United States Appraiser's Building, in 
the City of San Francisco, personally appeared before me, Southard 
Hoflfraan, a Commissioner, to take acknowledgments of bail and uflS- 
davits, etc., duly appointed by the Circuit Court of the United 
States for the Ninth Circuit and Northern District of California, 
James Donnelly, a witness on behalf of the Libellants in the above 
entitled suit. 

E. W. McGraw, Esq. and C. Page, Esq. , appeared as Proctors 
for the Libellants, and Hall McAllister, Esq., as Proctor for the 
Claimants. 

And the said witness, having been by me first cautioned and 
sworn to testify to the truth, the whole truth, and nothing but the 
truth, in the cause aforesaid, did thereupon depose and say as fol- 
lows, that is to say: 

120 (Title of Cause.) 

COUxNSEL APPEARING. 

E. W. McGraw, Esq., & C. Page, Esq., for Libellants, 
Hall McAllister, Esq. for Claimant. 

San Francisco, Sept. 3d, 1886. 

James Donnelly called as a witness on behalf of Libel- 
lants, and after being first duly sworn, deposed and testified as fol- 
lows, to wit: 

Direct Examination. 

By Mr. McGraw — What is your name, age and business. A. 
James Donnelly, aged fifty-two, master mariner. 

Q. Do you know the barkentine "Portland"? A. Yes, sir. 

121 Q. If you have been employed on the barkentine " Port- 
laud," state in what capacity? A. I have been employed on 

the barkentine "Portland " since the first September, 1882, as 
master 

Q. Were you on board of her in the early part of the month of 
April this year? A. Yes, sir. I was in command of her at that 
time. 

Q. At the time there was a collision between her and the "State 
of California"? A. Yes, sir. 

Q. Where did the "Portland" sail from on that voyage? A, 
From Kuappton, Columbia River, W^ashington Territory. 

Q. What day did she sail? A. I will have to refer to my Journal 
for that. I started on the twenty-eighth March, 1886. 

Q . Sail for San Francisco ? A. Sailed for San Francisco. 



AMEKICAN BABKENTINE POETLAND. 53 

■' Q. What time did she arrive off harbor here ? A. I arrived off 
harbor here on the morning of the seventh April. 

Q. AVhere are the lights of the " Portland " rigged ? 

The Witness — The side lights you mean ? 

Counsel — Yes. 

A. In the main rigging, about six or seven feet above the rail of 
the vessel. 

Q. In the main rigging? A. Yes, sir. 

122 Q. What cargo did the vessel have on that trip? A. A 
cargo of lumber, sir. 

Q. A deck load ? A. Part of a deck load. The hold full and 
part of a load on deck. 

Q. How high was the deck load piled ? A. About eight feet and a 
half as near as I can remember. I cannot tell exactly. About eight 
and a half feet I should judge. 

Q. How high above the deck load were the side lights? A. I 
made a mistake in saying that the lights were in the main rigging. 
I meant the mizzen rigging. 

Q. How high above the deck load were the lights? A. About 
two or two and a half feet! Between two and three feet. 

Q. How were the lights rigged ? A. The lights were rigged with 
an inboard screen, set in with screws, with inboard screens extending 
about three feet forward of the lights. 

Q. A screen to the back of the light too, was there? A. Y'^es, 
sir; on the inboard side. The screen was on the inboard side. 

Q. What class of lights did you use ? A. I used the regular 
regulation lights. I don't know their size. 

Counsel for claimants objects to the statement of witness that he 
"used the regular regulation lights" and requires the witness to 
state what kind of lights were used. 

The Witness— a red light on the port side, and a green light on 
the starboard side. 

Q. What did the lights come from? — electric or lantern ? 

123 A. No, sir; from coal oil. 

Q. What was the coal oil burned in? A. It was burned 
in lamps fitted with chimneys with reflectors at the back of them. 

Q. Was there any protection to the lights besides the chimney's ? 

The Witness — What do you mean by protection ? 

Q. Any glass around them ? Was it a lantern ? A. Certainly. 
The lights were fitted with a red glass on one side and with green 
glass on the other, on the one side of the lamp. Metal around the 
other two parts. The lamp was built in a kind of three corner 
fashion, and the glass forms a kind of half circle and the two sides 
is metal. 

A. The metal formed the reflector? Q. No. The metal of the 
lamp does not form the reflector. It had a reflector inside the 
lamp likewise. Fitted inside of the lamps. 

Q. On the morning of April 7th, or night of April 6th, how 
much of the time were you on deck ? A. On the night of the 6th I 
was on deck from eight o'clock in the evening, when I tacked the 
ship off the Farallones at eight o'clock until eleven or a little after. 
I could not say exactly. 



54 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. When did you tack the ship off tlie Farallones ? A. I tacked 
the ship at eight o'clock otf the Farallones. At eleven o'clock, or 
fifteen minutes, or perhaps it might be twenty minutes after eleven 
o'clock, I tacked the ship again. 

124 Q. Which way did you tack? A. I tacked to the south- 
ward. 

Q. The last time? A. Yes, sir; about 11 o'clock or a little 
thereafter. 

Q. What was the wind at that time? A. The wind at that time 
was from the northward and eastward. 

Q. How strong? A. At that time the force of the wind was 
about six miles. 

By Mr. McAllister — A six-knot breeze? A. Yes, sir; about 
that. 

By Mr. McGraw — After you tacked to the southward, what did 
you do? A. I went below and lay down. 

Q. When you went below did you knoAv the condition of the lights 
on deck ? A I did not look at thorn at that time. 

Q. What time were the lights usually put out on the ' ' Portland "? 
A. At sundown. 

Q. Do you know whether or not they were put out that night ? 
A. I am positive they were put out at sundown. 

Q. Whose business was it to take care of the lights and see whether 
they were in good order? A. The officer on deck after 8 o'clock. 
The steward, previous to that, trims them and gets them on deck. 
After that the officer of the deck looks after the lights. 

Q. Who is the officer of the deck when you are on deck? A. The 
second officer when I am on deck. 

Q. What is his name ? A. His name is Henry Brunt. 

125 Q. Where is he now? A. 1 don't know. 

Q. You went below then in the watch of the second officer? 
A. I went below in the watch of the secoi-id officer, yes. 

Q. When did you next come on deck again? A. Sometime be- 
fore 4 o'clock, when I heard the noise about the steamer approach- 
ing the vessel. 

Q. State all about that. A. I heard a shouting and hallooing 
upon the deck, and also heard the man at the wheel saying " Cap- 
tain, come up on deck." I came up the after ladder. I said to the 
man at the wheel, "What is the matter"? He said there is a 
steamer coming right into us. I immediately jumped up on the 
deck load and the steamer was within the ship's length of us. I 
suppose it must have been five or six seconds after I got up on the 
deck load that the collision occurred. 

Q. Did you give any orders after you came an deck? A. No, sir. 

Q. Had no time to do it? A. No, sir; no time whatever to do 
anything of the kind; the steamer was too close on top of us. 

Q. Do you know how the ship was heading when you came on 
deck? A. The ship was heading to the northward and westward. 
Braced up with the forward braces. 

Q. What sail was she carrying, do you know? A. Carrying the 
foresail; also topsail, upper topsail and jib gallant-sail, mainsail, 



AMERICAN BARKENTINE PORTLAND. 5 5 

spanker, main staysail; jib and fljing-jib. All the other light sails 
were furled. 

126 Q. How was the wind? A. The wind then was from the 
northward and eastward , the same as when I left the deck. 

Q. How was the force of the wind at that time ? A. The force 
of the wind then was about a three or four-knot breeze. 

Q. When you went bolow, you say you tacked to the southward, 
and when you came on deck the vessel was heading to the north- 
wai'd and westward? A. Yes, sir. I gave orders when Point Bo- 
nita bore north to tack the ship. Not to let the ship go anything 
eastward of north. At 2 o'clock the mate tacked her. 

By Mr. McAllister — That you do not know, Captain. That is 
what he told you. A. That is according to what he told me. I 
know she was tacked, and was standing northward and westward. 

Counsel for claimant objects to the testimony relating to the last 
tacking of the ship, as the witness does not know it of his own 
knowledge. 

By Mu. McGeaw — You found her on that tack ? A. I found her 
on that tack according to orders which I left. 

Q. Whereabouts on the deck were you when you saw the steamer? 
A. On the after part of the deck load. I guess not two steps from 
the after part of the deck load. I had no time to get any further. 

Q. In which direction was the steamer approaching; from which 
direction? A. The steamer was coming towards my port side, 

127 at an angle towards the side. She was on the lee side of the 
vessel. I was on the starboard tack and she was coming 

from the lee side of me, toward me. 

Q. At what angle? A. I cannot tell the angle; I did not measure 
the angle. She was coming at an angle as if she was trying to cross 
the bow. 

By Mb. McAllister Do you say you were heading northward ? 

A. Northward and westward. I was informed that; I did not look 
at the compass when I went back. But the man at the wheel told 
me, and I may say that is how she was heading. 

Counsel for claimant objects to the witness testifying about the 
course, as it is not of his own knowledge. 

Q. Did you have time to notice how much headway the barken- 
entine had on when you came on deck? A. I could say that 
she was not going more than three or three and a half knots with 
the water. I could see that plainly. I also noticed that she was 
hanging up in wind pretty close. 

Q. Whereabouts did the steamer strike the barkentine, or the bark 
strike the steamer? A. The steamer struck the barkentine on the 
port bow, just forward of the cathead. 

Q- What was the eliect of that strike? A. Carried away the bow- 
sprit and jibboom; carried away all the headgear and made the ves- 
sel settle down to the water's edge. Opened her wood ends right 
out. 

Q. Did it have any effect on the vessel? A. The effect, sir, was 
that she filled with water. 

128 Q. Swing her around? A. Turned the vessel plum around; 



56 PACIFIC COAST STEAMSHIP COMPANY VS. 

threw everything aback that is, the square sails; threw them all 
aback. She slewed around upon the other tack. 

Q. What did the steamer do then? A. The steamer proceeded 
along. 

Q. Did not stop at all? A. Not that I could see. I watched her 
for some time and I could not see that she stopped whatever. 

Q. After the collision what did you do then? A. I ordered the 
second officer for to take and cast the lead. I told the mate to see 
that the anchors were clear; get the boats clear. 

Q. What was done after that? A. The second officer reported to 
me that I was in seventeen fathoms of water. He made the report 
to me that the whole of the bowsprit was lying over the chains, and 
he would have to saw it clear. I told him to take a couple of men 
with him and do so, and in the meantime I superintended getting 
the boats clear; get them turned up on the deck. 

By Mn. Mc.Illlster — Got the boats turned up on the peck? A. 
Yes, sir. We carry them bottom up. Put the tackle in the rigging 
all ready for hoisting out. When the mate got the anchors all clear 
he reported to me. I seen there was no danger; the vessel was not 
going to roll over, so I filled away on the port tack .and proceeded 
towards the Heads. 

By Mr. McGraw — The wind remained in the same direction? A. 
At that time the wind was canted more to the northward. 

129 Q. Did you get into San Francisco under sail ? A. No, sir. At 
7 o'clock the tug Wizard came along and took me in tow and 

towed me into San Francisco. At that time the wind had got to the 
westward of north. I was coming down with a fair wind, square 
yards. 

Q. Whereabouts in San Francisco did you bring up? A. With 
the assistance of the tug I took the barkentine in on the mud at 
Beale street and grounded her. 

Q- What is the tonnage of the Portland? A. -iGS tons. 

By Mr. McAllister — Register? A. Yes, sir; 4()8 tons odd. 

By Mr. McGraw — In vesssels of that size what is the custom as 
to rigging the lights; what part of the ship they shall be rigged in? 

Counsel for claimants objects to the proving of any custom. 

A. You carry your lights on the side. I don't know that it states 
where, whether it is forward or aft, so long as you carry them on 
the side. 

Q. I was asking you what was the custom among vessels? A. 
The custom among vessels is that they carry the lights in the rig- 
ging- 

Q. "Which rigging? A. Either; whichever you choose. Some 
forward, some in the main and some in the mizzen rigging. Some 
vessels will carry them in the forward rigging, some vessels further 
aft. 

Q. What is the objoct in putting them further nf c in small vesselci ? 
A. I don't know that there is any particular object in it. 

130 Q. Is that the custom among small vessels to carry the 
lights further aft ? A. No. There is some of them that carry 

them forward. I have been in small vessels that carried them in 
the forward rigging. They carry them on the side but it does not 



AMERICAN BARKENTINE PORTLAND. 57 

say wliicli riggiag you shall c.irry tlisin in. I Jo not kaow thcat 
there is any custom about it. Cari-y them where tboy are best ex- 
liiliited; where they can be seen the best. 

Q. How are your lights regulated with reference to the possibility 
of their being obstructed by the sails? A. The sails are clear of 
the lights. 

Q. Is it possible for the mainsail or the foresail to obscure the 
lights? A. It is not possible, the foresail is too high for it. 

Q. How about the mainsail? A. The mainsail never goes aft 
that far. It never goes outside the rail. 

Q. And the foresail you say is too high ? A. The clew of the 
foresail is too high to obstruct the light. The light shows under it. 

Q. What kind of oil do you s ly you burn ? A. Kerosene oil; nut 
oil. I had them lamps fitted expressly to burn coal oil; had chim- 
neys fitted to them. Had them fitted about six months previous to 
the collision. 

Q. You have the lamps yet, have you ? A. Yes, sir. 

Q. When you came on deck did you notice what the condition of 
the lights was? A. Immediately after the collision about the 
IBl first thing I done was to look at the lights. I found they were 
buruiug brightly. 

Q. Where were they and what light was on the port bow? A. 
The red light was on the port side, aud the green light was on the 
starboard side. 

Q. In their proper places ? 

Counsel for claimaats objects to the question as leading. 

A. Iq their proper places. I also when the watch below came on 
deck called every man on board the ship, mate, second mate and 
everybody, to go forward and look at them and report to me their 
condition. 

Counsel for claimants objects to any conversation, after the col- 
lision, between the captain and his crew, on the ground that it is 
incompetent and not part of the res geske. 

Q. At the time you saw the steamer did you near any noise or 
talk of men on board the steamer? A. No, sir; not a word. The 
noise I heard was from my crew. 

Q. In regard to the rate of speed at which the steamer was pro- 
ceeding, was it a high rate of speed ? A. That I don't know. 

Cross Examination. 

By Mb. McAllister — In whose employ are you now ? A. I am 
in the employ of A. M. Simpson & Bros. 

Q. How long have you been in their employ as master ? A. I 
have been in their employ as master some 9 years about, be- 
132 tween 8 and 9 years. 

Q. Running on this coast? A. Yes, sir. 

Q. And how long were you in their employ previous to being 
master? A. For about 6 years. 

Q. So you have been in their employ about 16 years ? A. About 
that. 

Q. You never were master before you were in their employ? A. 
No, sir. 



58 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. You became master in their employ? A. Yes, sir. 

Q. What is your age? A. 52 years. 

Q. How much lumber did you have on board under the deck at 
this time — at the time of this collision ? A. About perhaps 250,- 
000, I think about, 

Q. Is that all sawed lumber? A. All sawed. No, I think I bad 
a little timber on deck; that I am not positive about that now. 

Q. What was below? A. General lumber; sawed lumber below. 

Q. What was the deck load? Was that sawed lumber? A. All 
sawed lumber. 

Q. What was the amount you had on deck of lumber? A. I say 
I had about 250,000. 

Q. Then the 250,000 feet covers the deck load and the under deck 
load Loth. That is the total cargo? A. No, sir; the total cargo is 
about live hundred and sixty odd, 567,000. 

Q. That is what I want to get at; how much you had in the 

133 under deck load? A. About three hundred and twenty-five 
to 330,000 feet. 

Q. How much on deck? A. About two hundred and forty or 
250,000. Something like that. I forget exactly her cargo. Some- 
times I will make a difference of twenty-five or thirty-thousand feet. 

Q. You say the deck load was about eight feet and a half? A. 
About that. 

Q. Above the deck ? A. Above the deck. 

Q. Not above the rail ? A. No, sir; above the deck. Measuring 
from the deck. 

Q. Who was the first ofl&cer on this voyage? A. His name was 
Mr. Peterson. 

Q. What was first name ? A. I could not tell you now. 

Q. Where is Mr. Peterson, the first mate, now? A. As far as I 
can find out he is very nearly in Liverpool at this time. He shipped 
there. 

Q. What ship did he leave here in ? A. That I could not tell you. 

Q. Did he leave immediately after this aftair? A. Not for a 
month after. 

Q. What was the name of the second officer? A. Henry Brunt. 

Q. And when did he leave? A. About a month after. 

Q. Has he gone away from this coast ? A. I believe he is run- 
ning on the coast yet. I do not believe he has left the coast. 

Q. Y"ou do not know where he is? A. Not at present, but 

134 I could find him if you require him in a few days. 

Q. Any other officer besides the first and second mate ? 
A. Tiie steward, of course we call him an officer, he is here. 

Q. What is his name ? A. J. P. Bennett. 

Q. How many men did you have in the crew? A. Eight men; 
eiglit seamen, two officers, steward and captain. 

Q. Were all of the crew able seamen? A. All of the crew able 
seamen. 

Q. When do you expect to get away, captain? A. About next 
Wednesday. 

Q. Whore do you expect to go to ? A. Gray's Harbor, Washing- 
ton Territory. 



AMEKICAN BARKENTIXE TOBTLAXD. 59 

Q. Aud when do yoa expect to return here ? A. In about five or 
six weeks, at the furthest. 

Q. Then you are going awiiy simply temporary? A. That is all, 
sir. I go and get a load of lumber for Simpson Bros., and bring it 
back to San Francisco. 

Q What time do you say this collision occurred ? A. It was 
somewhere before four o'clock. 

Q. Who was on deck from twelve to four. Whose watch was on 
deck? A. Mr. Peterson's, the chief officer. 

Q. Who were the seamen in the Peterson watch ? A. I could not 
give you their names, without I had my articles. I have them in the 
article.''. 

Q. He was in charge of the ship then ? A. He was in charge of 
the ship then. 

Q. From twelve to four? A. From twelve to four. 

Q. At the time of the collision? A. That is the time of the col- 
lision. 
135 Q. The lights had been set out at sunset, as I under- 

stand you? A. Yes, sir. 

Q. And that had been done by the steward ? A. No. The stew- 
ard gives tho lamps out on deck and he calls out "Side lights." 
The officer then directs some person of the crew "Come and put your 
side lights out "; and they put them in tho rigging and secure them. 

Q. In whose watch were those side lights rigged, on this evening 
previous to the collision ? A. Iq the mate's watch. 

Q. First mate? A. Yes, sir; first mate. Regularly after six 
o'clock, between six and eight they were put out at sundown. Sun- 
set may be at six o'clock. 

Q. You were speaking of the character of these lights and the 
chimneys. What were the chimneys made of? A. Of glass. 

Q. Where did you get those lights? A. I got them from a man 
here. You mean the lights themselves ? 

Counsel — Yes. 

The Witness — (Continuing.) They were in the ship when I took 
charge of her. I don't know where the lamps were got from. 

Q. What did you pay; you spoke of paying something in connec- 
tion with the lights ? A. I altered the lamps, the vessel which 
holds the oil, and had wicks fitted to burn coal oil, and then fitted 
chimneys to them like a regular coal oil lamp, and fitted reflectors 

in them. 
13G Q. AVho did that work for you? A. A man by the name 

of Swan, who had a tinsmith's store on Steuart street — had 
then, he has not got it now. 

Q. You say you were on the port deck at the time of this collision ? 
A. No, sir; 1 said I was on the starboard deck. I said the steamer 
approached us on the port side. 

Q. You were on the starboard deck? A. Yes, sir. 

Q. Had you any torch on board of your vessel? A. A flash light, 
yes; certainly I had a flash light. 

Q. You did have one on board ? A. Yes, sir; certainly. 

Q. What kind of a light was that? A. It is a vessel which holds 



60 PACIFIC COAST STEAMSHIP COMPANY VS. 

spirits of turpentine which we set a fire and hold it out in case of a 
vessel approaching. 

Q. Was that used ou this occasion ? A. No, sir. 

Q. Wiiere was that torch or flash kept? A. It was kept at the 
entrance to the companion. 

Q. Companion-way, is it not? A. Yes, sir. 

C^. Who sent the " Wizard " to you? A. I guess he came out. 

Q. Looking for a job or was he sent to you ? A. Not sent to me. 
He came out and happened to see me and came and spoke to me. 
Q. Where did you buy the oil? A. Hanley & Snow. 

137 Q. Did you buy it yourself ? A. I bought it at times. 

Q. It was ordinary coal oil or kerosene ? A. Yes, sir; ker- 
osene. 

Q. What lights did the steamer have when you saw her? 
A. Green light; mast head light. I saw about forty other lights 
through her houses. All her cabins seemed to be lighted up. Seen 
a light out of every window. 

Q. Now will you be kind enough to draw me a diagram of the 
position of the steamer and the portion of the vessel at the point of 
time just before the collision and annex it to your deposition, 
marking the points of the compass. Mark the one the steamer so 
that Ave can tell the one from the other? [The witness draws a dia- 
gram as desired.] A. That is as near as I can get it. 

(Diagram offered in evidence and marked "Exhibit A".) 

Q. What kind of wi ks were those in your lights ? A. They were 
flat wicks, probably a quarter of an inch broad. 

Q. Where did you get those ? A. I don't know where I did 
get them; whether I got them of Josselyn or of John Smith. I for- 
get exactly where I did get them. Sometimes I get them in Jos- 
selyn's store, the ship chandler, and sometimes I get them of John 
Smith. 

Q. You spoke of reflectors inside of those lights. Were those 
reflectors attached to the lamp inside ? A. There is a little skit 
fastened on them and the reflector is fixed to it. 

138 Q. What is the substance of which the reflector is made ? 
A. I think it is burnished tin . 

Q. What is the sizo of the diameter of the reflector ? Is it round ? 
A. Yes, sir. 

Q. What is the diameter of the reflector? A. I should suppose 
probably six and a half inches in circumference. 

Q. In circumference? A. About that I should think, six or six 
and half. 

Q. What was the size of the whole lantern from the bottom to the 
top of it? A. I judge probably — I could not say for certain. It 
might be eighteen inches. I could not say for certain. 

Q. There were certain sides of this lantern closed, as I under- 
stand with tin. How many sides of each lantern was closed? A. 
Two sides closed, one was open. The side which fits on to the 
semen is tin, and the aft side is tin, but the front is glass 

Q. The side toward the ship is, of course, closed? A. Yes, sir. 

Q. Is the other side closed? A. The half part is. These lamps 
are made kind of angular, and the front side is all glass. 




V-- 




\. 



\'.. 



hu. ^^ 



AMERICAN BABKIKTINE rORTLANI>. 61 

Q. Do you mean to say that tlie lamp is made in the shape of a 
triangle? A. Nearly. 

Q. Three sides to it? A. Yes, sir. 
Q. Two sides glass and one side tin? A. Yes, sir. 
Q. And its front side is what? A. It is glass. 
Q. And the other sides are tin? A. Yea, sir. 

Q. And the whole number of sides are three? A. Yes, sir. 

139 Redirect. 

By Me. McGeaw Make a diagram of one of these lights. 

A. I could not do that to slaow. 

Mr. McAllistkr — You can introduce one of those lights. 

Q. When you came ou deck what was the condition of the night, 
with reference to its being a foggy or dark night? A. The night 
was clear. 

Q. Did you see any of the lights immediately after the collision? 
A. I seen Point Reyes, Farallones, Point Bonita, Fort Point, 
Telegraph Hill; and I seen the land also. 

Q. Which way did Point Bonita bear? A. Point Bonita after the 
collision — I took the bearing, or, at least, I ordered them to be 
taken by the mate; I did not take them myself — bore east by north, 
half north. 

Testimony objected to, as the witness did not take the bearings 
himself. 

The witness, continuing — Point Reyes bore northwest. 

Q. That is after you had swung around, is it? A. Yes, sir. 
We did not alter it a great deal. 

Q. How was the sea? A. Perfectly smooth ; not even a swell on; 
no ground swell. Nothing. 

Q. After you came on deck was there any possible thing that you 
could have done to avoid the collision? 

140 Question objected to as leading and suggestive. 

A. Nothing at all, sir; nothing at all. There was no time 
for to do anything. 

Re-cross Examination. 

By Mr. McAllister — How far, at the time you speak of, immedi- 
ately after the collision, was Point Bonita off? A. I should judge 
about ten miles. 

Q. How far was Point Reyes? A. Point Reyes was about thir- 
teen or fourteen miles. 

Q. How far were the Farallones off? A. About the same distance 
as Point Reyes. 

Q. Thirteen or fourteen miles? A. I guess about that. 

Q. How far was Fort Point? A. About twelve miles. 

Q. How far from Telegraph Hill? A. I don't know. I don't 
know how far Telegraph Hill lies inside the land. 

Q. You say you saw land? A. Yes, sir. 

Q. In which direction did you see land? A. I seen it when she 
was turned around, and I seen it then, I guess, on the port side. 

Q. How far off was the land which you saw? A. About sis or 
seven miles. 

Q. When you saw Fort Point, Point Bonita, Point Reyes, Tele- 



62 PACIFIC COAST STEAMSHIP COMPANY VS. 

graph Hill, do you mean to say that you saw those objects, or saw 

the lights? A. I saw the lights. 
141 Q. The lights of those various points? A. Yea, sir. 

Q. "When you say you saw the land, do you mean to say 
that you saw the land itself, or lights on the land ? A. I mean to 
say I saw the land. I seen DuxburyHead, at Bolinas. 

Q. How long after the collision? A. Immediately afterward; say 
five or ten minutes afterwards. 

Q. And the land was off, you say, six miles? A. I say six or 
seven miles; somewhere in that neighborhood; not further oflf. 



Be it further remembered that the deposition of James Donelly 
was then and there taken in shorthand in the presence of the depo- 
nent, the reading and signing of said deposition being duly waived 
by counsel for the respective parties, as appears by the stipulation 
hereto attached. 

Given under ray hand and seal, at the City and County 
[seal.] of San Francisco, State of California, tlais 18th day 
of September, a. d. 1886. 

Southard Hoffman 
Commissioner U. S. Circuit Court, Northern District of California. 
[Endorsed:] Filed September 18th, 188G. 

Southard Hoffman, Clerk. 

143 (Title of Cause.) 

Stipulated : That the deposition of Edward Peterson, a witness 
on the part of the libellant, may be taken de bene esse before any 
Clerk or Commissioner of the Circuit Court of the U. S or Clerk of 
the District Court of U. S. for N. Dist. of California, at the office 
of the Clerk of the District Court of the U. S. for the N. District of 
California, at San Francisco, California, on the 30th day of June, 
A. D., 1887, at 11 o'clock a. m., to be used at the trial of said case 
the same as if the witness was on the stand. It being understood 
that said witness is about to depart from the State of California. 

Also stipulated that said deposition may be read in evidence in 
the case of the Pacific Coast Steamship Company against the bark- 
entinePortland now pending in said Court with the same effect as if 
taken in said case. 

Also that said deposition may be taken down by a short-hand 
reporter and that signature of witness. and all formal objections to 
said deposition are waived. 

E. W. McGRAW, 
Proctor for Libellant in above case and for Claimant in other 
case. 

144 McAllister & bergin, 

Proctors for Claimant in above case and for Libellant in other 
case. 
[Endorsed:] Filed June 29th, 1887. 

Southard Hoffman, Clerk. 
By J. S. Manley, Depfi/ Clerk. 



AMERICAN BAEKENTINE PORTLAND. 63 

145 (Title of Cause.) 

San FitANCisco, June 30th, 1887. 

Appearances: E.W. McGraw, Esq., and C. Page, Esq., Proctors 
for Libellants. 

Hall McAllister, Esq., Proctor for Claimants. 

Edward Peteeson, called as a witness on behalf of Libellants, and 
after being first duly sworn, deposed and testified as follows: 

Direct Examination. 

By Mil. McGraw — "What is your name, age and' occupation ? A. 
Edward Peterson, age forty-six, occupation a mariner. I have been 
mate and am now second mate. 

146 Q. How long have you been going to sea? A. Thirty-one 
years. 

Q. What countryman are you? A. Swede by birth, but I have 
been in the United States of America for twenty-nine years. 

Q. Do you know the barkentine "Portland"? A. Yes, sir. 

Q. Were you on board of her in April, 1886 ? A. Yes, sir. 

Q. In what capacity ? A. Chief officer. 

Q. Do you remember the occasion of the barkentine "Portland" 
colliding with the steamer "State of California"? A. Yes, sir. 

Q. On the morning of the collision, at what time did you come on 
deck ? A. Twelve o'clock midnight. 

Q. Was it your watch then? A. Yes, sir: it was my watch from 
twelve till four. 

Q. When you came on deck how was the vessel standing ? A. On 
the port tack towards the southward and eastward. I cannot 
recollect about some testimony that I gave, but I refer to that. You 
find the truth and nothing but the truth. There might be some 
little things that I have forgot, for I have to trust to my memory. 

Q. How long did the vessel stand southward and eastward? A. 
Up to two o'clock, when Point Bonita bore north. That was my 
orders from the captain. 

Q. At two o'clock, when Point Bonita bore north, what did you 
do then ? A. I tacked the ship northward and westward. 

147 Q. How was the wind after you tacked ship and while you 
were standing on the starboard tack? A. About northeast 

when I got on the starboard tack. 

Q. You were on the starboard tack after it was tacked? A. After 
I tacked ship I ran from the port tack to the starboard tack. 
Yes. the wind was about northeast; northeast by north, something 
like that. 

Q. What happened while you were on that tack; you can describe 
the collision and all the circumstances? A. About forty minutes 
past three, something near like that, I cannot know exactly when I 
saw the steamer. 

Q. Which way did the steamer bear ? A. The steamer was just 
a little forward of our starboard beam when I first seen her. 

Q. About how far would you say ? A. I could not exactly judge. 
It took her about fifteen minutes before she got up to us. 

Q. Then you saw her lights fifteen minutes before the collision ? 



G4 PACIFIC COAST STEAMSHIP COMPANY VS. 

A. I saw her lights, headlights, before she came anywhere near us; 
as near as 1 can judge, hadn't no time, but as near as I can judge, I 
think it was that. 

Q. When you saw the lights of the steamer what did you do ? A. 
I seen her masthead light first and then afterwards when she came 
closer 1 seen her green side light, the starboard light. 

Q. What did you do with the barkentine if anything, when you 

saw the steamer's lights? A. When I saw the side lights the first 

thing I done was to see if our siile lights was burning bright 

148 as they ought to be and I found they was doing so; burning 
as they ought to burn, as bright as they should burn. 

Q. After that what was done if anything on board the Portland? 
A. The steamer was coming right for us and I seen that she was go- 
ing to collide with us and I sung out to the man at the wheel to put 
the helm hard down and keep the vessel close up to the wind, just 
enough to keep headway on the ship, and out of the way as much as 
possible. The steamer didn't seem to pay no attention to us what- 
ever. She didn't seem to deviate a mite from her course. 

Q. How long before the collision was it that you ordered the 
helmsman to put her up into the wind ? A. About 5 minutes I 
should judge. 

Q. What was the effect of putting her up into the wind ? A. To 
stop her from going ahead. 

Q. How was she sailing before you put her up by the wind ? A. 
Sailing by the wind close hauled. But by lutfiug up a little to keep 
the sail just shivering so that the vessel didn't have no head, to stop 
her headway. By that I thought the steamer might have a chance 
to go by us. And as soon as the steamer got in hailing distance I 
hollered as loud as I could and so did the rest of the men on deck 
in my watch. They hollered to the steamer but she didn't seem to 
pay any attention to us whatever. 

Q. How long before the collision was it that you hailed the 
steamer? A I should judge about a minute or so. 

Q. At the time you haile I the steamer what would have been the 
effect if the steamer had changed her course to starboard ? 

149 A. If the steamer had altered her course a little, put her helra 
to starboard a little mite, altered her course a little more in 

shore she might have gone clear of us. 

Q. Did the steamer strike you ? A. Yes, sir. 

Q. Where ? A. She struck us right on the bowsprit, cut us right 
down from the bowsprit, took away all our headgear and took away 
the stem, broke away the gallant-forecastle and took the stem down 
below the water's edge and splintered the plank in her bow. In ten 
minutes time after she struck us the vessel was water-logged; there 
was over two feet in the cabin. 

Q. That is, the Portland was water-logged? A. Yes, sir. 

Q. What did the steamer do after she struck you? A. She went 
about her business. She never stopped; never paid the slightest 
attention to us whatever. 

Q. After you saw the steamer did yon order the vessel pumped 
out? A. Just before I seen the steamer I sung out to the men to 
pump her out and then the man at the lookout said there is a light 



AJIEKICAN BAEKENTINE POKTLAND. 65 

on our beam. "Steamer it looks to be," he said. "All right then, 
never miud going down to pump the vessel"; there were two men 
started to go down so I said never mind going down there at present. 

Q. How long was that before the collision ? A. About 15 min- 
utes before the collision. It was just as we seen the steamer's 
160 light. 

Q. Do you know a man by the name of Dan Mullen? A. 
Yea, it was his lookout. 

Q. When you gave the order to pump ship did any conversation 
of tins kind occur between you and Dan; did you say to him — 

Mr. McAllister (Intg ) — Counsel for claimants objects to counsel 
putting a conversation in the form of a question and then asking the 
witness if it occurred as the same is leading and suggestive. 

Q. Did you say to Dan, " Why don't you pump ship"? A. No, 
sir; I didn't. 

Q. Did he say to you, " Don't you see that steamer "? 

Mk. McAllister — Claimants objects to the question as leading 
and suggestive. 

A. No, sir; ho didn't say, "Don't you see that steamer"? He 
said, " There is a steamer." " Yes." said I, " I have seen her." 

Q. Did you answer to him, "Never mind the steamer; pump 
shi|)"? 

By Mr. McAllister — The question is objected to as leading and 
suggestive. 

A. No, sir; I did not. 

Q. Did he then ask you " Is your lights burning bright?" 

Mr. McAllister — The question is objected to as leading and sug- 
gestive. 

A. He said: " Is your red side light bui'ning?" and I said yes, it 
is burning bright, and all the men went to the rail and found it 
so, too. 

Q. When he asked you if the lights were burning did you answer 
him, " Never mind the lights, pump ship?" 

Mr. McAllister — The question is objected to as leading 
151 and suggestive. 

A. No, sir; I didn't do no siTch thing. 

Q. Did he say then " No, not until that steamer passes?" 

Mr. McAllister — The question is objected to as leading and sug- 
gestive. 

A. No, sir. 

Q. Now state, as near as you recollect, what conversation actually 
did take place; state it all. 

The Witness — Between that man and me ? 

Mr. McGraw — Yes. A. There is no more than I have told you, 
sir. There was no more conversation between him and me than just 
what I have told you. He said to me, "Is your light burning," and 
I said " Yes, our light is burning," and they went to look at it. 
He said first there is a steamer, and I said I have seen her and there 
were two men going down to pump the vessel, to pump ship, and I 
said never mind going down there, let the steamer pass first, that is 
my rule. 

Q. How long was that before the collision ? A. I should judge 



66 PACIFIC COAST STEAMSHIP COMPANY VS. 

about fifteen minutes as near as I can recollect. That Avas the first 
when we seen the lights. 

Q. Was that all that was said what you have stated ? A. That is 
about all that was said except when I hailed the steamer, except my 
telling the man to keep her close up to the wind. 

Q. What kind of a night was that ? A. In the first part of the 
night it was blowing, and it was blowing at twelve o'clock, 

152 but between twelve and two I set the foretopgallant sail as it 
moderated down before I tacked the ship. It was rainy, misty 

and blowy in the first part of the night; and so it was in the after- 
noon the day before but after midnight it moderated down. 

A. At the time of the collision? Q. I should judge it was be- 
tween a three- and four-knot breeze. 

Q. As to the weather being clear ? A. It was clear enough so I 
could see the steamer's lights, she certainly could see ours. It was 
clear enough for me to see the steamer's lights, the headlight, about 
fifteen minutes before she struck us. 

Q. Did you see any other lights but the steamer's lights around ? 
A. I saw the Faralloues, Point Keyes and Point Bonita and Tele- 
graph Hill. 

Q Did you take the bearings of those lights? A. I took the 
bearings of those three lights after the collision. Point Bonita, 
Point lieyes and Farallones by request of the captain. 

Q. Have you those bearings now ? A. I have not; it is in the 
log book, put down in the log book. 

Q. Put down by whom; you or the captain? A. By me. 

Q. They are correctly entered in the log book? A. Correctly en- 
tered in the log book at the hour and minute. 

Cross Examination. 

153 By Mr. McAllister — The Portland was bound to San 
Francisco, as I understand you? A. Yes, sir. 

Q. And what was the precise place where this collision occurred; 
describe the place of the collision as near as you can. A. It was 
between here and Point Reyes. We were standing inshore, and 
after 2 o'clock we tacked ship and stood towards the north shore and 
this wind kept canting more and more so that it took us off consid- 
erable. 

Q. What was the nearest laud to you at the time of the collision ? 
A. The nearest land to us at the time of the collision was the North 
Shore. 

Q. Do you mean the North Head ? A. Not the North Head; the 
land that is between Point Reyes and the North Head. 

Q. The land that is between Point Reyes and the North Head? 
A. Between Point Reyes and Point Bonita. 

Q. How far is Point Bonita from Point Reyes ? A. Twenty-two 
miles, I think it is. I never measured the distance exactly. 

Q. And the nearest land you say was the land between Point 
Reyes and Point Bonita, is that right ? A. Yes, sir. 

Q. And how far were you from land at the time of the collision ? 
A. I should think about seven or eight miles. 

154 Q. How were you heading at the time of the collision ? A. 



AAIEIIICAN BARKGNTINE PORTLAND. b( 

That I would have to refer to the log book; you will see it there, 
I cannot remember exactly. 

Q. I only want it accorJingtoyour best recollection? A. I could 
not say: I know it was heading north and west, and was standing in 
towards the land. I cannot tell you how we were heading at the 
time, for you will have to refer to the log book of the Portland. 

Q. Were you heading between north and west? A. Yes, sir. 

Q. Bat yoa cannot stite how, mora particularly how, you were 
hea ling than that? A. No, sir; not the point. 

Q. What sail .were you carrying at the time of the collision? A. 
Fore topsails, cai-ryiug all sails except the fore royal, fore skysail 
and gaff topsail. 

Q. Were you carrying all the lower sails ? A. Yes, sir. 

Q. Carrying a spanker ? A. Yes, sir. 

Q. Topsails — .ill the topsails? A. Not the gaff topsails, fore top- 
sails, bat not main nor rnizz 'u topsail. 

Q. Carrying fore topsails but not main nor mizzen topsails? A. 
No, sir. 

Q. Were you carrying your topgallant-sails? A. Yes; foro top- 
gallant-sails. 

155 Q. Fore top-gallant-sails? A. Yes, sir. 

Q. And main topgallant-sails? A. No, sir; we have no 
main top-gallant sails. 

Q. How many jibs were you carrying? A. Two jibs and fore 
topmast staysail. 

Q. How close will your bark sail to the wind ? A. She sails 
about 5i points to the wind. 

Q. What was the course of the steamer just before the collision, 
how WIS she hea ling ? A. Going from Point Reyes to North Head. 

Q. How was she heading according to the points of the compass? 
A. She was going on the course — I cannot recollect, I cannot say 
exactly. 

Q. Bat as near as you can? A. She was steering the true course 
from Point Reyes to North Head. 

Q. Was she going south, west or east? A. Between south and 
east; she was going for the North Head. 

Q. She was entering the harbor ? A. She was bound for San 
Francisco. 

Q. And when you came into collision with this steamer you struck 
her on the starboard side ? A. We struck her or she struck us, for 
she was trying to get ahead of us. 

Q. And your bow came in contact with that steamer on the 

156 starboard side, didn't it ? A. Yes, sir. 

Q. Did the bowsprit strike her ? A. The bowsprit must 
have struck her or she struck it first with her bow% I could not say 
exactly. 

Q. What part of the steamer did your vessel strike ? A. It must 
have been her side. 

Q. About how far from the stem of the steamer? A. That I 
could not say for I never went to look at her afterwards; there was 
considerable excitement. 

Q. Do you know whether you struck her close to the bow on the 



G8 PACIFIC COAST STEAMSHIP COMPAJJY VS. 

starboard side ? A. We must Lave been close to the bow when she 
first started, but I suppose there was a little sea way and pressed 
her up against us. 

Q. How much sea was there at that time? A. Pretty rough, but 
it was going down; it had been a deal rougher. 

Q. You say the weather had been misty? A. Yes, sir; misty 
and rainy and blowing. 

Q. When did that condition of weather cease, the windy, rainy 
and blowing character of the weather ? A. It moderated down 
after twelve o'clock. 

Q. What time do you fix as the time of the collision ? A. I fix 
it between three and four o'clock; it was before four. 

Q. Which was it, nearer to three or to four? A. Nearer to four 
than to three. 

157 Q. What day of the week was this collision, what morn- 
ing was it? A. That 1 cannot recollect. 

Q. You can tell the date of the month? A. Yes, sir; it was the 
7th. 

Q. Where have you been since this collision? A. I have been 
to Europe. 

Q. What vessel did you go to Europe in ? A. The ship "Astoria." 

Q. When did you return here ? A. I returned here about a 
month ago. 

Q. In whose employ are you now? A. I am in Carlton & Nor- 
ridge's employ of Kockland, Maine. 

Q. What ship are you attached to now? A. The "Frederick 
Billings". 

Q. What vessel did you arrive in port on board of? A. The 
" Fredfirick Billings ". 

Q. Wiien did you arrive here? A. About a month ago. 

(^. Where did she come from? A. Cardiff. 

Q. W^ithcoal? A. Yes, sir. 

Q. Who was she consigned to? A. Spreckles. 

Q. What is your first name ? A. Edward. 

Q. What was your position on board the "Astoria?" A. 

158 Chief officer. 

Q. You left this port in the "Astoria?" A. Yes, sir. 

Q. As first officer? A. Yes, sir. 

Q. And returned ? A. I returned in the " Frederick Billings " 
as second officer. 

Q. The collision occurred during your watch as I understand ? 
A. Yes, sir. 

Q. The captain and second mate were not on deck at the time of 
the collision, is that right? A. They just came on deck. 

Q. But previous to the collision they were not on deck ? A. No, 
sir. 

Q. Who were on deck previous to the collision on your watch ? 
A. Four men. 

Q. Who is the man on the lookout? A. His name is Dan; it was 
his lookout. 

Q. He looked out, for two hours? Q. Yes, sir. 



AMERICAN BAEKENTIXE PORTLAND. 69 

Q. Wlio was on the lookout from two till four ? A. That is the 
man that was on the lookout from two till four. 
Q. Who? A. Dan. 
Q. Dan Mullane'P A. Yes, sir. 

Q. Who was at the wheel from two till four? A. I cannot recol- 
lect his name; he was a Eussian Finn, I know that. 

159 Q. Who was at the wheel from 12 till 2? A. Another 
Russian Finn; I had two in my watch. 

Q. Do you know the name of this Russian Finn ? A. I know 
one; his name was Frank; tlie other I cannot recollect. 

Q. The two Finns were on deck, and Dan Mullane on deck, and 
that made three ? A. Yes, sir. 

Q. And you were the fourth man? A. Yes, sir. 

Q. And one of the Finns was at the wheel from twelve till two ? 
A. Yes, sir. And another from two till four. 

Q. Dan Mullane was on the lookout from two till four? A. I had 
another man on the lookout from twelve till four. 

Q. Who was the man ? A. I had four men in my watch. 

Q. Who is the man that was on the lookout from twelve till two ? 
A. I cannot recollect. 

Q. Where was Dan Mullane previous to this collision ? A. In 
the fore part of the mainmast — the whole of them were on the fore 
part of the mainmast on top of lumber looking out. 

Q. This ship had a deck load of lumber? A. Yes, sir. 

Q. How far did it run, up to the stern of the vessel? A. No, sir; 
a little forward. 

Q. How close to the top-gallant forecastle is the lumber piled ? 
A. About tliree feet of the top-gallant forecastle. 

160 Q. How high above the bulwarks ? About four or five 
feet. 

Q. Did you take in any sail at twelve o'clock? A. No, sir; I 
didn't take in any sail. 

Q. Did you set any sail at twelve o'clock or after twelve? A. I 
set the fore-top-gallant sail after twelve o'clock. 

Q. What time did you set that sail ? A. I should say between 
one and two, it was just before I tacked ship. 

Q. Were the four men on deck sufficient to set that sail ? A. 
Yes, sir. 

Q. You didn't call the balance of the watch ? A. No, sir. 

Q. Who was it that first gave warning of this steamer's lights; who 
was the first person ou board of your vessel to give warning of the 
steamer's lights approaching ? A. It was Dan. 

Q. What did he say? A. He said "There is a light." I says 
' ' Yes, I have seen her." And he said " That is a steamer." "Yes," 
said I, " I think it is." 

Q. The one that saw the light first you say was Dan Mullane ? A. 
I seen it before he spoke. 

Q. When you first saw the light of the steamer how was she bear- 
ing from your vessel ? A. That I cannot recollect. 

Q. Was it not about on the port bow — oflf your port bow or star- 
board bow ? A. On our starboard bow. 

161 Q. What time was it when you first saw that light ? A. I 



70 PACIFIC COAST STEA51SHIP CO]MPA^"Y VS. 

must refer to the log book, I cannot answer that question now for it 
is too long back. 

Q. Your recollection is somewhat indistinct about this matter? 
A. Yes, sir. 

Q. Did you put it down in the log book ? A. Yes, sir, and swore 
to it. 

Q. When did you put it down in the log book? A. The morning 
after the collision. 

Q. Did the captain assist yoa in putting it into the log book? A. 
No. sir. 

Q. What was the couYersation between you and Dan Mullane at 
the time that he called your attention to this light. State all that 
he said, aud all that you said? A. All that he said to me was 
"There is a steamer's light out there, is our light burning"? I 
said "Yes, our light is burning." And all my watch went over to 
the side to look to see if it was burning. 

Q. What light was that, the red or green light? A. The red 
light. 

Q. Is that all the conversation between you aud Dan Mullane at 
that time ? A. That is all the conversation between us. 

Q. How fast wex'e you going just previous to the collision? A. 
Just three or four knots. There was a simple collision for I had her 
head up to the wind so that she had hardly headway. 

162 Q. What was this light of the steimer's which you say was 
the masthead light ? A. Yes, that I seen first. 

Q. How long after that before you saw the side light of the 
steamer ? A. That I could not exactly remember. 

Q. How long before the collision did you see the side lights of 
the steamer ? A. Seven or eight minutes. 

Q. What was that, a green or red light ? A. A green light on the 
starboard side. 

Q. When were the lights on board your ship put out ? A. As 
soon as the sun was down; a little after the sun goes down, a little 
after sundown. 

Q. Who was the person who attended to doing that? A. The 
steward puts them out in the evening. 

Q. What was the name of the steward on board your vessel? 
A. I don't know his name; I don't recollect his name. 

Q. Who attends to the cleaning of these lights and taking care of 
them ? A. The steward takes care of them and cleans them, except 
if they happen to go out, and the officer of the deck takes them 
down and trims them. 

Q. Does the steward put them in the rigging? A. He lights them 
and puts them out of the cabin, aud then whoever is in charge takes 
them and puts them up either himself or sends a man to put them 
up. 

Q. Did you have any torch on board of this vessel, the Portland ? 
A. Yes, sir. 

163 Q. Where was it? A. Where they always keep it. 
Q. Whore is that? A. In the companion-way. 

Q. What kind of a torch was it? A. Turpentine. It was kind 
of round, with a handle to it, aud you fill this can up full of turpen- 



AMERICAN BARKEKTIKE PORTLA^■D. 71 

tine, and there is a short handle to save the hands of the man that 
holds it, and you take it and strike a match. 

Q. That A-essel is filled with turpentine? A. Yes, sir. 

Q. And when it is lighted it makes a bright light? A. Yes, sir. 

Q. There is a handle? A. Yes, sir. 

Q. How long a handle ? A. Just enough for a man to get hold of. 

Q. How much does it hold? A. About a quart of turpentine. 

Q. Did you have any turpentine on board for that torch ? A. 
Yes, sir. 

Q. Did you exhibit that torch that evening of the collision? A. 
No, sir; because — 

Q. [Intg] I did not ask you for the reason. You did not ? A. 
No, sir. 

Q. Were either of your side lights, green or red lights, taken 
IQi down that night? A. Yes, sir; the red light was. 

Q. When was the red light taken down ? A. I took it down 
myself, about, I should judge, it was after three o'clock when I took 
it down. 

Q. Where did you carry it when you took it down? A. Took it 
down in the pantry. 

Q. You took it down? A. I took it to brighten and carried it 
down in the pantry and trimmed the wick and wiped off the glass. 

Q. Why did you do that ? A. Because I wanted the light to 
burn bright. 

Q. Who put the light up in the rigging after thatj? A. I did my- 
self. 

Q. Who took it down from the rigging on that occasion ? A. I 
did. 

Q. Did you take down the green light during that night? A. No, 
sir; it was not required. 

Q. Why was it that the red light was required to be taken down 
and not the green light? A. It will happen aboard every ship. 

Q. While you were keeping your watch on deck that night be- 
tween 12 and 4, what part of the vessel did you walk backward and 
forward on ? A. Aft, on top of the deck load. 

Q. Is there a hou.se on deck in this ship? A. Yes, sir. 

Q. An after house? A. Yes, sir; but it is covered with lum- 
ber. 
165 Q. How high was lumber piled on top of that deck house ? 

A. I suppose about three feet. 

Q. Did you walk on that ? A. Yes, sir; on top of the deck load. 

Q. Could a man standing at the helm see over the deck load in 
front of him? A. No, sir; he did not. 

Q. How far does this deck house come up? A. The deck house 
comes above the waist of a man. 

Q. On top of the house there was how many feet of lumber piled ? 
A. I could not say, exactly; might be four, five, and only three. 

Q. Standing in that well you cannot see ahead of a man. A. He 
cannot see very well. 

Q. How did the vessel work when you put your helm to starboard; 
did the vessel go to port ? A. Yes, sir. 

Q. Sometimes they have wheels that, when you turn them to star- 



72 PACIFIC COAST STEAMSHIP COMPANY VS. 

board, the vessel goes that way, have they not? A. I don't know of 
them. 

Q. On board of the vessel, whenever the wheel is put to starboard 
it sends the vessel to port ? A. Tes, sir. 

Q. And when it is turned to port it sends the vessel to starboard ? 
A. Yes, sir. 

Q. "What tack do you say the " Portland " was on at the 

166 time of the collision? A. The starboard tack, I think, sir. 

Q. You made a statement before some one here about that 
matter, did vou not? 

The Witness — In Hull do you mean? 

Q. Didn't you make a statement before the laspectors? A. Yes, 
sir. 

Q. Of Hulls and Boilers? A. Yes, sir. 

Q. Where was that? A. In San Francisco. 

Q. I want to call your attention to your testimony given on the 
14th of April, 1886, before the United States local inspectors of 
steamboats, whether you testified in this way: "I was on deck the 
morning of the collision; went on deck about 1^ o'clock; there were 
four men on deck besides myself, one of the regular lookout." Did 
you testify in that way ? A. Yes, sir. 

Q. Now you see there is a little difference between that testimony 
and your present testimony. You say in the previous testimony 
there were four men on deck besides myself? A. Yes, sir. 

Q. But in this testimony, as I understand you to say, there were 
three men besides yourself, and two Finns, Dan Mullane and your- 
self? A. And one man more than I said. 

167 Q. Four men besides yourself ? A. Yes, sir. 

Q. "At 3 o'clock wind commenced to calm from north north- 
east, and at 4 o'clock it was about north." Is that what you testi- 
fied before United States Inspector? A. Y''es, sir. What I testi- 
fied before them is correct, because then my memory was fresh. 

Q. " We tacked to northwest at 2 o'clock, and at that time Point 
Bonita bore north by compass?" Did you testify to that? A. 
Yes, sir. 

Q. "At 4 o'clock we had all sails set except the royals, sky sails 
and spanker." Did you testify to that ? A. The spanker was set, 
if I am not mistaken. 

Q. The question is, first, did you so testify, " at 4 o'clock we had 
all sails set except royals, sky sail and spanker." Did you so testify 
there? A. It must be so; it must be correct. 

Q. But your present recollection is that the spanker was set? A. 
It might and might not be, for weather had been bad. 

Q. "The collision took place at 3.35 by our clock." Did you tes- 
tify to that? A. Yes, I suppose so. 

Q. I call your attention to the farther testimony: "At 3:30 
we had all sails set except royals, sky sails and light stay sails." 
Did you testify to that? A. Yes, sir. 

168 Q. Did you testify to this: "I first saw the steamer 'State of 
California ' lights about 15 minutes before the collision ? " A. 

Yes, sir. 



AMERICAN BAIiKENTINE PORTLAND. 73 

Q. " Siw the red and green and head lights off our port beam?" 
Did you testify to that? A.. Yes, sir. 

Q. The port beam ? A. That is right. 

Q. Did you testify to this before the same parties: ''Wo had red 
and green lights on our vessel and burning brightly." Did you tes- 
tify to that? A. Yes, sir. 

Q. Did you testify to this; " One of our men draued my atten- 
tion to them when the steamer was seen?" A. Yes, sir. 

Q. Did you testify to this: " The captain came on deck just be- 
fore she struck? " Did you testify to that? A. Yes, sir; he waked 
up when he heard me hollering. 

Q. Did you testify to this; "Our vessel was heading northwest 
by our compass at 3 p. m., and northwest by west at the time of the 
collision." Did yon testify to that? A. Yes, sir. 

Q. Did you testify to this: "Just before the collision four or five 

minutes I gave orders to Andrew somebody, the man at the wheel, 

to put the helm down and ring her up into the wiml, as I thought 

the steamer was going to cross our bow." Did you testify to that? 

A. Yes, sir. 

169 Q. You testified to this: " I took down the red light be- 
cause it was a little smoky; I didn't take down the green one 

because it was bright " ? A. Y^es, sir. 

Q. Did you testify to this: " I cleaned and cleared the red light 
and trimmed the wick and she burned bright after that"? A. Yes, 
sir. 

Q. From what time had the weather been hazy that night, Mr. 
Peterson ? A. The weather was hazy and misty the first part of the 
night. 

Q. Till about what time ? A. Commencing to clear up between 
1 and 2 o'clock. 

Q. While you were in Hull, Mr. Peterson, did you make an affi- 
davit before H. E. Lambert, a notary public there? A. No, I didn't 
make no affidavit before no notary public at all. It was Johnston's 
clerk. There was a letter from there from Starbrook in New York. 

Q. No matter about Johnston's clerk, I want to know whether 
you made an affidavit there? A. A statement. The letter wanted 
to know something about it and I told them then I didn't know ex- 
actly how it was. 

Q. Let me see if this is the statement that you made: 

"I, Edward Peterson, of New York, in the United States of 
America, mariner, do solemnly and sincerely declare as follows: 

' ' I am the mate of the sailing ship Astoria of New York , now 

170 in dock at the port of Hull, in England. I joined the Astoria 
on the 5th of May, 1886, at San Francisco. Previous to that I 

was mate of the barkentine Portland of San Francisco. I was mate 
of the Portland on the — day of April, 1886, the day she was in col- 
lision with the steamer State of California. It was my watch 
when the collision happened and I had charge of the deck. The 
collision happened about 3 :30 in the morning. My vessel was on 
the starboard tack standing into the land. About 20 minutes before 
the collision happened I saw a white light some distance away for- 
ward of our port beam. Was a hazy morning and it was raining a 



7-1 PACIFIC COAST STEAIISHIP COMPANY VS. 

slight drizzle. The wind bad beeu blowing fresh, but it had then 
fallen light. When I first saw the said light it looked like a dim 
star. The light was, as it afterwards proved, was the mast head- 
light of the steamer State of California. In a little while the green 
light belonging to the steamer appeared. I at once went to see that 
our red light was burning. I did that because I saw that the 
steamer's course would cross the course of my vessel. 

" When I looked at the red light I saw that it was rather dim and 
I therefore took down the light in order to trim it. I took the light 
down into the cabin and then into the pantry, where I trimmed it. 
After I had trimmed it I took it on deck and at once fixed it in its 
place in the mizzen rigging on the port side. The steamer was then 
on the same course. She kept on the same course, and in about 15 
minutes from the time I refixed the red light the steamer 

171 struck our vessel on the port bow. Just before the collision 
I ordered the helm put down and our vessel was kept close to 

the wind. 

" Declared at the Port of Hull aforesaid on the 15th day of Oc- 
tober, 188G." 

The Witness — There is a little fault there about taking the side- 
lights in. 

Q Did you make that statement ? A. I made that statement. 

Q. AVhat is there in that that you want to correct? A. That is 
not a sworn statement for I didn't know whether he was a notary 
public or a cleik. I was told it was Johnston's clerk. 

Q. What is there about it that is wrong? A. There is a place 
there about the sidelight, that I took the sidelight in after I seen 
the steamer. I had the sidelight in before ever 1 seen the steamer. 
That is the fault. 

Q. When are you going away Mr. Peterson? A. Just as soon as 
I can get away. 

Q. Are you still on board the Frederick Billings ? A. Yes, sir; 
we are getting ready for sea and my time is precious now, sitting 
here instead of being on board. 

Q. Is you vessel loaded yet? A. Yes, sir; she is loaded and 
ready for sea; getting ready for sea and all we are waiting for is a 
crew. We have 24 men before the mast and we pick them up as we 
can get them. 

172 Q. Where is your vessel lying, in the stream? A. Yes, 
sir. 

Mr. McAllister — Mr. Peterson says he did not swear to this 
statement. I believe I have the original statement. I will produce 
it here to-morrow. I have sent to Mr. Goodall for it, but he has 
not come here. This is a copy I have, but I would like to show 
him the original, to see whether he has not sworn to it. I ask the 
Commissioner to exhibit that to him. 

Mr. McGraw — I don't know whether we can get him back or not. 

Redirect Examination. 

By Mr. McGraw — Did you sign any paper in Hull? A. No; I 
didn't sign anything. I just only told these persons that asked me. 
I "*as told that it was one of the clerks, just the same as I was writ- 



AMERICAN BARKENTINE PORTLAND. 75 

ing the letter myself. I thought ho was going to write. The cap- 
tain told me it would be better to have one of Johnston's clerks 
write it than to write it myself. So I got a letter from Capt. Star- 
bird as soon as I was in Hull. He wanted to know about the col- 
lision with the State of California, for he said I am interested in the 
State of California. I am the owner of her. And Captain Ander- 
son told me it would be better to have one of Johnston's clerks to 
write the letter. " He is a smart fellow and will write more cor- 
rect than you do yourself." 

Q. Did you sigu that letter that he wrote ? A. I don't recollect 
that I signed it or not. 

173 Q. Was it read over to you ? A. It was not read over after 
he wrote it down. 

Q. Did you state to the clerk who was taking it down there in 
Hull, that you took down the red light after you sighted the steamer ? 
A. I did not say so. but he has got it down there. I did not speak 
it so, because if I had said that I would have stated a falsehood. 

Q. Do you know who Mr. Starbird is who wanted this statement 
from you? A. Yes, sir; he is a ship owner in New York and part 
owner of the Astoria. 

Q. He wrote that he was interested in the State of California ? 
A. He didn't write me that exactly. The captain showed me a let- 
ter that he had from Mr. Starbird, but there was another letter to 
me in a printed form that he wanted to know them particulars. 

Q. How did you come to ship in the Astoria ? A. He was in need 
of a mate and I was looking for a mates berth. 

Q. Who is this Johnston's clerk in Hull? A. He is a ship 
agent; does business for the ships in port; consignee, etc. 

Q. Where was this letter you speak about written; aboard the 
ship or in his office ? A. Up in his office. 

174 Q. lathe shipping clerk's office? A. Y'es, sir. At that 
time I had my arm in a sling and was in considerable pain. 

Q. Did you get a telegram from here on behalf of Mr. Simpson 
requesting you to come back ? A. Yes, sir. 

Q. While you were in Hull? A. Yes, sir; the second day I was 
in Hull. I didn't get the telegram myself. There was a gentleman 
come down from London, a man by the name of Mr. Gurney, I 
think it was, and another gentleman, Brown & Atkins, in Hull. I 
believe it was Mr. Brown himself came aboard the Astoria and asked 
me to come to California. 

Q. Was this letter or statement that you made In Hull before 
you got that telegram ? A. That was before that. And I told 
him too that I wrote a statement about it. That is near as I can 
recollect, I say. 

Q. Did you decline to come in answer to that telegram ? A. No, 
sir; I did not. I would come if I had got quit of the ship, but the 
captain didn't feel inclined to let me go, but at last I did leave him 
and had to forfeit about £8 of wages, nearly $40 of wages, just be- 
cause I did leave. 

Q. The captain would not allow you to come back to California? 
A. No, sir. 



76 PACIFIC COAST STEAMSHIP COMPAXY VS. 

Q. You say the sbip you are on now, the Frederick Billings, is 
ready for sea? A. Yes, sir. 

175 Q. Out in the stream '? A. Yes, sir. 

Q. Where is she bound for? A. Liverpool. 

Q. And will sail as soon as you can get a crew ? A. Y"es, sir. 

Q. It you hadn't luffed up the Portland a few minutes before the 
collision what would have been the consequence ? A. The conse- 
quence -would have been that very likely the steamer would run us in 
two, either she run us in two or we sink her, for there would be more 
headway on our vessel and more pressure on her. I done that to 
try and save live and property. 

Q. Was there anything that could have been done by the Port- 
land or the people on board of her that could avoid that col- 
lision ? 

Mu. McAllister — I object to the question as leading and suggest- 
ive and as summing up the whole case in one question. 

A. Not according to the rule of the road. And if I hadn't fol- 
lowed the rule of the road I would have have been at fault, the ves- 
sel would have had to stand the consequences, the owner of the ship. 

Q. Is it customary or ordinarily necessary to take down the lights 

and clean them during watch ? A. If they get anyways dim it 

is necessary to clean them and keep them bright, and it is common 

occurrence an a sailing ship that the sidelight will get dim, that 

176 the wick will burn down and get a little smoky. 

Q. And you take them down to clean them? A. Yes, sir; 
that only takes a couple of minutes to do that and put them up 
again. It is a common occurrence in sailing ships and I dare say 
steamers also, for I have seen steamers without side lights alto- 
gether. 

jMii. McAllister — I now ask the privilege of having the examination 
adjourned until to-morrow morning at ten o'clock, or whatever hour is 
convenient, to show to the witness the original of the paper I have 
produced here. 

Mr. McGraw — To avoid recalling the witness we will admit that 
any paper that you will produce to-morrow with the original nota- 
ry's seal to it with what purports to be Mr. Peterson's signature, we 
will admit is Mr. Peterson's signature. 

I\Ir. McAllister — Very well I will take it in that way. 

The paper above referred to is marked " Claimant's Exhibit A" 
and the same is attached to this deposition. 

An adjournment was then taken until to-morrow morning, July 
1st, 1887, at 11 o'clock a. m. to give Mr. McAllister an opportunity 
of producing the original of the paper a copv of which is marked 
"Exhibit A." 



177 (Title of Cause.) 

Sax Frakcisco, July 1st, 1887. 
Mr. McAllister, proctor for claimants, this day produced the 
original of the paper referred to in the deposition of Edward Peter- 
son yesterday and the copy of which was marked " Claimant's Ex- 
hibit A," and in fulfillment of the stipulation then made, it is admit- 
ted by Mr. McGraw and Mr. Page, proctors for the libellants, that 



AMERICAN BAKKENTINE PORTLAND. 77 

the signature " E. Peterson " is the signature of the Edward Peter- 
son who made the foregoing deposition; it is also agreed that the 
original paper may bo attached to this deposition instead of the 
copy, and that the same may be marked " Claimant's Exhibit A," 
and the same is marked " Claimant's Exhibit A " and attached to this 
deposition. 

Claimant's Exhibit "A." 

178 I, Edward Peterson of New York, in the United States of 
America, mariner, do solemnly and sincerely declare as 

follows : 

I am the mate of the sailing ship "Astoria" of New York now 
in dock at the port of Hull, in England. I joined the "Astoria " on 
the 5th of May, 1886, at San Francisco. Previous to that I was 
mate of the barkentine " Portland " of San Francisco. I was mate 
of the " Portland " on the day of April, 1886, the day she was 

in collision with the steamer " State of California." It was my 
watch when the collision happened and I had charge of the deck. 
The collision hajipeued about iJ :30 in the morning. My vessel was 
on the starboard tack standing into the land. About twenty min- 
utes before the collision happened I saw a white light some distance 
away forward of our port beam. Was a hazy morning and it was 
raining a slight drizzle. The wind had been blowing fresh, but it 
had then fallen light. When I first saw the said light it looked like 
a dim star. The light was as it afterwards proved was the mast-head 
light of the steamer " State of California." In a little while the 
green light belonging to the steamer appeared. I at once went to 
see that our red light was burning. I did that because I saw that 
the steamer's course would cross the course of my vessel. 

When I looked at the red light I saw that it was rather dim and 

I therefore took down the light in order to trim it. I took the light 

down into the cabin and then into the j^antry where I trimmed it. 

After I had trimmed it I took it on deck and at once fixed it in its 

place in the mizzeu rigging on the port side. The steamer 

179 was then on the port side. The steamer was then on the 
same course She kept on the same course, and in about fifteen 

minutes from the time I refixed the red light the steamer struck our 
vessel on the port bow. Just before the collision I ordered the 
helm put down and our vessel was kept close to the wind. 

Declared at the port of Hull aforesaid on the 15th day of October 
1886. 

E. Peteeson. 
Before me, 
[seal.] Henry C. Lambert, Notary Public. 

Hull. 
(In pencil.) 

These papers may be annexed to the deposition of Edward Peter- 
son in suit of Simpson et. al. vs. Steamship " California," and we 
admit the signature of E. Peterson thereto is his signature. 
July 1, 1887. 

180 (Claimant's Ex. "A.") 



( O PACIFIC COAST STEAMSHIP COMPANY VS. 

United States Consulate, 

Hull, England, Oct. 16th, 1886. 
I, Edward Howard, commercial agent of the United States of 
America at Hull, England, do hereby certify that the signature of 
Henry C. Lambert at the foot of the paper hereunto annexed, is his 
true and genuine signature, made and acknowledged in my presence, 
and that the said Henry C. Lambert is a notary public duly author- 
ized to administer oaths, and is personally kuowu to me. 

In witness whereof, I have hereunto set my hand and affixed the 
seal of the Consulate at Hull, Eugland, this day and year next above 
written, and of the Independence of the United States — 
[seal.] Edward Howard, 

U. S. Commercial Agent. 

181 Be it remembered, that the deposition of Edward Peterson 

was then and there taken in shorthand in the presence of the 
witness — the reading and signing of said deposition and all objections 
to the manner and form of the taking of the same being expressly 
waived by the stipulation of proctors for the respective parties, 
which is hereto attached. 

Given under my hand at San Francisco this 8th day of July, 1886. 

J. S. Manley, 
Commissioner 0. S. Circuit Court Northern District of California. 

[Endorsed:] Filed July 8th, 1887. 

Southard Hoffman, Clerk. 
By J. S. Manley, Deputy Clerk. 

183 (Title of Cause.) 

It is hereby stipulated and agreed that the testimony of 
Joseph Pinney Bennett and James Daly, witnesses examined on be- 
half of the libellants, may be taken down in shorthand by J. F. 
Gawthorne, Esq., and that the notes of said testimony may be tran- 
scribed and read in evidence on the trial of the above case with the 
same effect as if the same had been taken in longhand by the com- 
missioner. It is further agreed that the signature of the witness to 
his deposition is waived, as also all other formal requirements of 
law. Objections to questions and answers, other than as to the 
form thereof, are reserved. 

Sept. 9, '86. McAllister & bergin. 

Proctors for Claimants. 
EDW. W. McGRAW, 

Proctor for Libellant. 

184 (Title of Cause.) 

Be it remembered, that on this ninth day of September, A. 
D. 1886, at my office, Room 64, in the United States Appraiser's 
Building, in the City of S m Francisco, personally appeared before 
me, James S. Manley, a Commissioner, to take acknowledgments 
of bail and affidavits, etc., duly appointed by the Circuit Court of 
the United States for the Ninth * 'ircuit and Northern District of 
California, Joseph Pinney Bennett and James Daly, witnesses on 
behalf of the Libellants in the above entitled suit. 



AMERICAN BARKENTIXE PORTLAND. 79 

£. W. McGraw, Esq. and C. Page, Esq., appeared as Proctors for 
the Libellants, and Hall McAllister, Esq., as Proctor for the 
Claimant. 

And the said witnesses having been by me first cautioned and 
sworn to testify to the truth, the whole truth, and nothing but the 
truth, in the cause aforesaid, did thereupon depose and say as fol- 
lows, that is to say: 

185 (Title of Cause.) 

San Francisco, Sept. 9th, 1886. 

Counsel AppEARiNa, 

E. W. McGraw, Esq., and C. Page, Esq., for Libellants, 
Hall McAllister, Esq., for Claimants. 



Joseph Pinney Bennett, called as a witness on behalf of the 
Libellants, and after being first duly sworn, deposed and testified as 
follows, to wit: 

Db'ect Examination. 

By Mr. McGraw — What is your occupation ? A. Steward. 

Q. On what vessel were you engaged in April last? A. On the 
barkentine "Portland." 

Q. On the bark on the voyage from the Columbia Eiver 
18G down to San Francisco, at the time of the collision ? A. Yes, 
sir. 

Q. What were your duties on the bark ? A. Cooking. 

Q. Did you have any duties connected with the lights ? A. Yes, 
sir; trimming them. Getting them ready for setting out. 

Q. What lights did you trim and make ready ? A. In all; all the 
lights? 

Q. Yes. A. The binnacle light; the side lights; cabin light for 
light in the forward cabin; one in the captain's stateroom; and one 
in the mate's room; one in the galley; and the anchor light, signal 
light. 

Q. When did you attend to the side lights, and binnacle light; 
what of time day ? A, I trimmed them in the afternoon, sir, after 
dinner. 

Q. Did you do anything besides trim them? A. Cleaned them 
to have them all right. 

Q. Put anything in them to burn? A. Yes, sir; oil, filled them. 

Q. The evening before this collision, or afternoon before this col- 
lision, were the lights trimmed and made ready as usual ? A. As 
usual, sir. 

Q. Side lights? A. Yes, sir. 

Q. At what time in the afternoon or evening were they 
187 put out ? A. I cannot exactly state the hour. It was about 
dusk. 

Q. Who handed them out of the pantry where they were stored? 
A. Myself, sir. 

Q. Were they lighted, or unlit, when you passed them out? A. 
Lit, sir. 



80 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. In what condition were tbej ? A. Good; all ready for setting 
np; in proper condition. 

Q. After you banded them out of the pantry, state whether or 
not you saw them in their place after that? A. O! yes; seen them 
in their place, sir. 

Q. How were they burning? A. Burning, sir. 

Q. How were they burning ? A. Quite bright, sir. 

Q. What time did you turn in that night? A. About 9 o'clock I 
should judge. 

Q. What time did you get up next morning ? A. At the time of 
the collision, sir. 

Q. Were you asleep or awake at the time of the collision ? A. 
At the time of the collision I was awake. 

Q. How long before the collision did you wake, and wliat waked 
yoix, if anything? A. The officer on deck and his watch hallooing, 
sir. 

Q. That wakened you ? A. That wakened me. 

Q. Did you hear what they were holloowing? A. Yes, sir. 

188 Q. What was it ? A. " Halloa there, what are you trying to 
do; where are you going." And about half a dozen sharp 

voices; that is, the second mate and his men all hallooing out. Of 
course the hallooing continued for about — as near as I can remember 
of the time — i or 5 seconds. 

Q. What happened then? A. I jumped up out of my berth, and 
got my pants on, and just about the time I was slipping my shoes 
on my feet I heard a crash. 

Q. What did you do then? A. I went on deck to see what was 
the matter. As I came on deck I run right to the port side and I 
looked over the side to see if the vessel was sinking, and ran for- 
ward, I asked what was the matter. One of the men said to me: 
" There was a steamer ran into us." And from there I turned to go 
into the galley, and went on the starboard side to go into the galley. 

Q. Did you see the steamer ? A. Yes, sir, seen the steamer ly- 
ing ahead of us. After I went in the galley I came out again. I 
met the captain and he told me to try and get some coffee ready for 
the men, which I done. 

Q. When you came up the first time you went forward? A. I 
went forward to see what was the matter. 

Q. Did you notice the lights of the barkentine? A. Yes, 

189 sir; when I looked over the port side to see if the ship was 
sinking, the lights, I don't suppose was over 14 feet away 

from me, and the red light was glaring bright. 

Q. When you looked over the port side, were you forward or aft 
of the port light? A. Forward of the light. The port light was on 
my left hand when I looked over the side. 

Q. The port light was burning brightly? A. Burning brightly. 
It was a red light. You know it shines very strong. 

Q. Did you see the green light ? A. Yes, sir; when I was on the 
starboard side I seen the green light. 

Q What was the condition of that? A. It was all right, sir. 

Q. Burning brightly ? A. Burning brightly. 



AMERICAN BARKENTINE PORTLAND. 81 

Counsel for claimants objects to the style of questioning as lead- 
ing. 

Cross Examination. 

By Mb. McAllister — Were you cook and steward on this vessel 
both ? A. Yes, sir. 

Q. Did you cook for the men and also for the captain ? A. Yes, 
sir. 

Q. Who was the master of the barkentine Portland on this 

190 voyage? A. James Donnelly. 

Q. How many mates did you have? A. Two. 

Q. What were the names of the two mates? A. The chief mate's 
name was Peterson. 

Q First name? A I could not tell you his first name. 

Q. The name of the second mate? A. The second mate was 
Brunz, n German. Brunz I believe his name Avas. 

Q. How many men in the crew besides yourself ? A. Eight men, 
sir, before the mast. 

Q. Whose watch was it on deck at the time of this collision? A. 
A. The mate's, sir; the chief mate's. 

Q. How many men were in his watch? A. Four. 

Q. Do you know who those four men were? A. I know them, 
sir, but I do not know their names. 

Q. How long were you iu the employ of the barkentine Portland ? 

The Witness — At the time of the collision? 

COUNSKL — Yes. 

A. Fourteen months or thereabouts. 

Q. Are you now in the employ of A. M. Simpson & Co.? No, 
sir; not exactly. 

Q. What do you mean by not exactly? A. Well, I have 

191 not been on the ship, sir; I have been sick and left the vessel. 

Q. Do you expect to go back in their employ ? A. I expect 
so, sir, if I get a chance. 

Q. And have been running in their employ fourteen months? A. 
Fourteen months on board the Portland I have been in their em- 
ploy before that. 

Q. How many years have you been in the employ of Simpson 
Bros. ? A. I should judge, off and on, about three years. 

Q. That is the name of the firm is it not, Simpson Bros. ? A. 
Simpson Bros. I was in their employ here some years ago, and I 
stayed on shore and did not go back until a little while ago. 

Q. How often do you trim the various lights, the binnacle light, 
the side lights, the cabin light, the light in the captain's room, the 
light in the mate's room, the light in the galley and the anchor light? 
A. Every day, sir. 

Q. You were the only person that attended to the trimming of 
those lights? A. I am the only person. 

Q. Do you burn the same character of oil in all of them? A. 
No, sir. 

Q. What do you burn in the side lights? A. Kerosene oil. 

Q. What in the binnacle light? A. Nut oil and kerosene 
mixed. 



82 PACIFIC COAST STEAMSHIP COMPANY VS. 

192 Q. "What in the cabin light? A. All ihe remaining lights 
is kerosene oil. 

Q. Then the only distinction was in the binnacle light? A. Yes, 
sir. 

Q. That was nut oil mixed with kerosene? A. Yes, sir. 

Q. Why was that? A. Because that is a different lamp alto- 
getlier. One of those little round tubes with yarn wick; cotton 
wick. 

Q. What date was this collision ? A. I have forgotten it. 

Q. State the date as near as you recollect it? A. I could not tell 
the exact date, sir. 

Q. Tell what month it was? A. It was in April. 

Q. April of what year? A. This year, sir. 

Q. What day of the Aveek was it? A. I could not answer that 
question. 

Q. What hour was it in the morning? A. I should judge by the 
cabin clock that it was pretty near 4 o'clock, as far as I can tell, 
half-past three to four. 

Q. You went to bed at 9 o'clock that night, and had not been out 
until this time, I suppose? A. No, sir. 

Q. You did not attend to these lights during the night; you 

193 simply attended to preparing to set them out? A. I did not. 

Q. After they were prepared to set out you had nothing 
more to do with Ihem ? A. No, sir. I lit them and gave them to 
the chief officer. 

Q. He attended to setting them out? A. Yes, sir. 

Q. Did yon put the binnacle light in the binnacle? A. Yes, sir; 
I did that myself. 

Q. Did you put the cabin light in the cabin? A. Yes, sir. 

Q. Put the captain's light in his room? A. Yes, sir. 

Q. The mate's light in his room ? A. Yes, sir. 

Q. The light in the galley? A. Yes, sir. 

Q. You let the mate attend to the side lights? A. Yes, sir. 

Q. There was no forward light ? A. No, sir; no more than the 
light in the forecastle. That the men look charge of themselves. 

Q. Where was the forecastle of this ship, below or on deck ? A. 
On deck. 

Q. Between what masts? A. The main and the foremast. The 
fort mast goes down through the forecastle house. 

Q. Where was the galley ? A. On ihe starboard side. 

194 Q. Was it forward or alt of the deck house? A. It is on 
the starboard side, at the aft end of the forward house. 

Q. At the aft end of the forward house on the starboard side. A. 
Yes, sir. 

Q. Only taking up half the house then? A. Not exactly half, the 
men bad the best portion of the house. 

Q. Does it run through the deck house, the galley, or simply on 
the starboard side ? A. Simply on the starboard side. One part 
cut oft", about one-quarter. 

Q. The rear room cut off"? A. The rear room. 

Q. Where did you sleep ? A. In the cabin. 

Q. Is that below or on deck? A. On deck, sir; a house on deck. 



AMERICAN BARKEKTIXE PORTLAND. 83 

Q. Now who requested you to look over, after this collision, to 
the port side, to see if the light was burning ? A. I was not 
requested to look at the light to see if it was burning. 

Q. AVhy did you do it? A. I could not help it; I went there to 
see if the ship was sinking, and the light was in my face. 

Q. Did you go to look at the light for the purpose of ascertaining 
by the light if the ship was sinking? A. I did not, sir. 

195 Q. What was the object, or interest, in your looking at the 
port light in the moment of excitement ? A. I could not help 

seeing the port light when looking over the side, for it was glaring 
in my face. 

Q. Why did you go over to look at the starboard side light? A, 
That light sir; as I come from the forward part of the ship to go in 
the galley, looking that way, you can see that light ou the deck load. 

Q. What kind of wick was in these sidelights? A. A flat wick, 
such as is generally used in kerosene lamps. 

Q. What was the size of the wick, the length of it and the diame- 
ter of it, and the width of it ? A. The width of it I suppose half an 
inch. 

Q. How thick ? A. About that. [Showing.] 

Q. As thick as two sheets of blotting paper? A. About that, yes, 
sir. 

Q. How long was this wick that you put into the lamp? A. I do 
not know the exact length of these wicks, sir; I should judge about 
five inches. 

Q. Do you put a new^ wick in every day, or simply trim the old 
wick? A. I do not put a new wick in every day. I always make it a 
business not to let the wick stay too long in the lamp. 

Q. How do you trim these wicks, cutting it with scissors ? A. If 
they need cutting with scissors I cut them. If they do not I 
don't. 

196 Q. Do you put fresh kerosene in every day ? A. I have to. 
Q. How much do these side lights hold of kerosene, a 

barrel or a quart? A. No, sir; they hold a quart. 

Q. A pint or half a pint? A. I suppose a little over a pint. 

By McGraw — Each of them, or the two ? A. Each. 

By Mr. McAllister — You filled them every day ? A. Every day, 
sir. 

Q. How far does the light burn down that quantity if it has been 
out all night ? A. I should judge about half, sir. 

Q. You think it is about half burned down, and you fill it up the 
next day ? A. Yes, sir. 

Q. Always fill them up ? A. Yes, sir; always fill them up, unless 
I am cleaning out the lamps. 

Q. Where did you keep your oil on board the ship? A. The oil 
that is in use I keep in the locker in the pantry. 

Q. Where was the pantry on the barkentine ? A. In the cabin, 
the forward end of the cabin. 

Q. The forward end of the cabin, on which side? A. Ou the 
starboard side. 

Q That was the pantry ? A. Yes sir. 



84 PACIFIC COAST STEAMSHIP COMPANY VS. 

197 Q. Did it open in the cabin, or open on deck ? A. It opens 
in the cabin. There is a bulkhead between the cabin and the 

mate's room, ^s•hich shuts off the after part of the cabin from the 
pantry. 

Q. You kept that in the pantry ? A. Yes, sir. 

Q. What kind of a vessel did you keep it in ? A. A regular oil 
tin: kerosene tin. 

Q. How large? A. Five-gallon tin. 

Q. Did you have more than one five-gallon tin there, or only one? 
A. One there at a time. 

Q. Where was the balance kept ? A. In the lazarete. 

Q. Is that under the cabin? A. No, sir, it is under what they 
call the poop deck. 

Q. Where was the nut oil kept? A. In the pantry. 

Q. What was that kept in ? A. A regular tin there that they 
ship it on board in. 

Q. When you trimmed the wick of these side lights in the morn- 
ing, what did you generally find its condition to be, as to crust or 
not ? A. Not to any great extent. 

Q. It is different from most lamps then; these were peculiar 

lamps; the wicks did not crust? A. No, sir, they were not any way 

peculiar than any other lamp. On trimming the lamps I 

198 found not a very thick crust on the wicks. 

Q. Does not a lamp of that kind always crust after it has 
burned all night ? A. Yes, but the crust is not to any great ex- 
tent. 

Q. Do you mean to say that these wicks were different from ordi- 
nary wicks? A. No, sir. 

Q. But you never found them crusted ? A. I found them crusted 
but not to any great extent. 

Q. When you found them crusted what did you do to trim them ? 
A. I might take my thumb and take them that way. [Showing.] 

Q. You might take any other part of your body; but what did 
you do, did you use scissors to trim them? A. When I needed 
scissors I took them, and when I did not need the scissors I took 
my fingers. 

Q . You are sure you had a pair of scissors? A. I had a pair of 
trimming scissors, yes, sir. 

Q. Were those bought for trimming the lamps ? A. Yes, sir. 

Q. What clock or clocks did you have on board? A. There is a 
clock in the cabin belonging to the ship. 

Q. Is that the only clock on board ? A. No, sir. 

Q. Where was the other clock? A. One was in the galley; my 
own. 

Q. Belonging to you, or belonging to the ship? A. Be- 

199 longing to me, sir. 

Q. AH the furniture in the galley belongs to you? A. No, 
sir. 

Q. Only the clock? A. The clock belongs to me. 

Q. How often is this clock in the cabin wound up ? A. Every 
night, sir. 

Q. Who winds it up ? A. The steward; myself. 



AMEEICAN BAEKENTINE PORTLAND. 85 

Q, It only runs, then, for 24 hours'? A. Yes. It is a 24-Lour 
clock; it runs 24 hours. 

Q. What part of the cabin does it hang in ? A. It is hanging on 
the bulkhead, that shuts off the captain's room from the forward 
cabin. 

Q. You state the foiward cabin. Are there two cabins there? 
A. We call the cajitaiu's room a cabin, and there is a bulkhead that 
shuts off the captain's room from the cabin. 

Q. And this clock hangs forward of that bulkhead, on the inner 
side of it ? A. Forward of the bulkhead, at the aft end of the dining 
table, right over the dining table. 

Q. Now have you given a written statement of this matter before ? 
A. I have, sir. 

Q. Who to ? A. The Notary Public. 

Q. Did you testify before the United Slates Inspector? A. Yes, 
sir. 

200 Q. Did you testify in the same way there as you have done 
here ? A. Some parts of the question, sir. 

Q. What was the difference between your testimony there and 
here ? A. The quantity of lamps I had to take care of. 

Q. Did you testify in the same way in reference to trimming the 
lamps? A. Yes, sir; as near as I can judge. 

Q. And with reference to looking at the port light after the col- 
lision? A. Yes, sir. 

Q. And looking at the starboard light? A. Yes, sir. 

Q. Who have you talked to about your testimony in reference to 
this matter ? A. 1 have not talked with any one. 

Q Have you not sat down and talked, or stood up and talked, with 
some one about what you were going to prove? A. No, sir; not as 
I know of. 

Q. You are sure you have not talked with Mr. Simpson, or any- 
body else, as to what you could prove, or what you recollect? A. 
No, sir. 

Q. When were you examined before the Inspectors ? A. Last 
Monday, I believe. 

Q. What was the condition of these lights when you went to clean 
them the next day, after this collision? A. The second mate took 
the lights in— 

201 Q. [Intg.] I say these particular side lights. Did you 
clean them after the collision; did you see them after the 

vessel landed ? A. Yes, sir, 

Q. Did you clean them then ? A. Yes, sir. 

Q. Wh it was their condition at that time ? A. The lamps was 
sitting on the house, and when I took them up to clean, the glass 
was wet ou the outside; I said the lamp was wet on the outside, 
when I say wet I mean damp. 

Q. Did you not find the outside of these lamps wet and dirty 
w^hen you came to cleau them the next day? A. A little; yes, sir. 

Q. Did you not find the wick almost out and crusted ? A. I did 
not, sir. 

Q. I forget to ask you whether you had a torch on board of this 
vessel ? A. There is. 



86 PACIFIC COAST STEAMSHIP COilPASY VS. 

Q. Where is it kept ? A. In the mate's room. 

Q. In the first mate's room ? A. First mate's room; he had that 
in his charge. 

Q. How was Ihat arranged; by what material was it lighted; 
what did they use in it? A. I suppose — 

Q. [lotg.] Do you know anything about it? A. Turpentine I 
always heard they used in it. 

Q. Did they have any turpentine on board for that purpose, 

202 that you know of ? A. Yes, sir. 

Q. Where was that turp<-ntiue kept ? A. I could not tell 
whether it was kept in the mate's room or in the locker. 

Q. You do not know that there was any turpentine on board ? A. 
Yes, I do. 

Q. What was it kept in ? A. In a can. 

Q. Bat you do not know where the can was kept? A. I know 
where ihey had one of the cans kept. 

Q. Where was that ? A. In the locker forward, under the house, 
where they kept the paint and oil, and all such things as that. 

Q. Where did they keep the key of that? A. The mate had 
charge of that; between him and the second mate 

Q. The torch was kept there? A. In the mate's room. He might 
have had the turpentine in a bottle, or something for that purpose. 
I do not know anything about that. 

Q. He might have had it in anything, but the question is, do you 
know anything about it? A. Yes, sir; I know they had turpen- 
tine there. 

Q. In the paint locker? A. Yes, sir. 

Q. And that is all you know of it? A. Yes, sir. 

Redirect. 

203 By Me. McGuaw— When do you expect to go to sea again ? 
A. I could not tell, sir. 

Q. You do expect to go to sea? A. Yes, sir. 
Q. Y^ou are liable to go to sea at any time? A. Yes, sir; liable, 
or stop ashore, I don't know which. Wherever I can get bread and 
butter. 

204 James Daly, called as a witness on behalf of libellants, and 
after being first duly sworn, deposed and testified as follows, 

to wit: 

Direct Examination. 

Mr. McGbaw — What is your business? 

The Witness — My business, about the collision with the State of 
California? 

Q. What is your business ? 

The Witness — What do I do, sir ? 

Q. Yes. A. Sailor. 

Q. Where were you in the early part of the month of April last ? 
A. I don't know, sir. 

Q. On what vessel? A. I was in the Portland. 

Q. Were you in the Portland at the time of the collision ? A. 
Yes, sir. 



AMERICAN 13AEKENT1KE POnTLAXD. 87 

Q. Do you remember the collision? A. Yes, sir. 
Q. Before the collision what was the last time that you were on 
the deck of the Portland ? A. 12 o'clock, sir. 

Q. "Which watch were you on ? A. Second mate's. 
Q. Turned in at 12 o'clock? A. Yes, sir. 

Q. AVhat time did you go on watch before 12 o'clock that night? 
A. 8 o'clock, sir. 

205 Q. What were your duties on that watch? 
The Witness: — lu the first watch, sir ? 

Q. Yes. A. To do anything that was required of me. I do not 
recollect exactly what we were doing. 

Q. Do you recollect whether you were on the lookout or at the 
wheel or what ? A. I do not recollect now whether I was on the 
lookout or on the wheel, but I had to be on one every watch. 

Q. Do you remember the condition of the lights on the Portland 
on your watch that night? A. W^ell, I don't say that I took much 
notice. I forget whether I was on the lookout or on the wheel, 
which. When I was on the lookout I always looked at them every 
little while to see whether they were burning, but I don't recollect 
whether I was on the lookout or at the wheel that night. 

Q. Where were you at the time of the collision ? A. I was in my 
bunk, sir. 

Q. Awake or asleep? A. I soon woke up. I was asleep, I guess, 
when they struck. 

Q. What did you do as soon as you woke up ? A. Turned out to 
come on deck to see what was the matter. 

Q. How did you find things on deck? A. They looked mighty 
rough. 

Q. Did you see any other vess;l around then? A. Yes, sir; I 
seen the steamer away off. 

Q. What was the condition of the bark? A. Well, everything 
was hanging around as if they did not belong to her. The 

206 sails were back. 

Q. How long did you stay on deck at that time ? A. Until 
■we got in here, sir; until we got inside. 

Q You did not go back to the forecastle? A. We went in and 
took our things out of the forecastle. 

Q. What did you take your things out for? A. It was getting full 
of water. We did not want them washed around as long as we had 
a place dry to put them. 

Q. When you first went on deck did you notice the lights of the 
Portland? A. Not exactly. Not exactly at first. 

Q. Did you at any time after coming on deck? A. Yes, sir; I 
looked around to see that they were burning. 

Q. How long after you came on deck ? A. I could not say ex- 
actly, sir. I just had to look forward to see how things were there, 
and then I see that the lights were burning. 

Q. How were they burning? A. They were burning bright, sir. 

Q. Did you see both lights? A. Yes, sir. 

Q. Both burning the same way ? A. Yes, sir. 

Q. You say you cannot tell how long after you came on deck. 



88 PACIFIC COAST STEAMSHIP COMPANY VS. 

Can you tell approximately? Was it as much as half an hour? A. 
No, sir; it was not half an hour. 

6V0S& Examination. 

By Mr. McAllister — Who was on your watch, the second 

207 mate's watch ? Names of the men I mean ? A. I don't know 
the names, sir. 

Q. How many were there? A. Four, sir. 

Q. You went to bed at twelve o'clock? A. Yes, sir. 

Q. And vou got up at the time of the collision, what time was 
that ? A. That I don't know. 

Q. About what time ? A. I think it was between three and four, sir. 

Q. Who was at the wheel? A. At the time of the collision there 
was a man in the mate's watch, sir. 

Q. Do you know his name? A. No, I do not; his first name was 
Andrew; the man they said was at the wheel. 

Q. What is the first thing you saw when you came on deck after 
the collision? A. The first thing I saw; well, T could see her sails. 

Q. What tack was she on at the time of the collision? A. I 
don't know, sir. She was in the starboard tack, I think. I don't 
know, sir. 

Q. Wbat was the condition of her sails when you came on deck? 
A. Her head sails were hanging alongside, and the others — her 
yarfls were back. 

Q. Where had she been struck by the steamer? A. Struck rightfor- 
ward — I don't know. She struck the steamer did not she ? 

208 She ran into the steamer, that is the way I understand it? 
A. That is the way I understand it. 

Q. W'here did she strike the steamer then? A. I don't know. I 
did not see the steamer at all. I seen her, but she was away off. 

Q. Could you tell by the condition of the ship what part of her 
had come into collision with the steamer ? A. Her bows; her whole 
stem. 

Q. What sails were hanging overboard ? A. All her jibs. 

Q. How many jibs did she have up previous to the collision ? A. 
I don't recollect; three, I think. 

Q. What sails did you see hanging over besides the jibs? A. I 
did not see any. 

Q. What was the efi"ectof the collision on the bowsprit, anything? 
A. Yes, sir; it was gone. 

Q. Entirely gone ? A. Hanging alongside. 

Q. Was the vessel leaking? A. Her forecastle was on the deck 
and that soon got full of water. It didn't get full but it got a lot 
in it. 

Q. How did you get to the harbor? A. Towed in, sir. 

Q. By what ? A. Steamer. 

Q- When did the steamer come to you? A. That morning, I 
don't recollect what time. 

209 Q. What did you do previous to the steamer coming to 
you ? What was done with the ship previous to the steamer 

coming to her relief? A. W^e had a little wind, and we were sail- 
ing her along. She was standing right in. 



AMERICAN BAHKENTINE POIITLAXI). 89 

Q. You Jo not know what time the steamer came to your relief, 
or the tugboat? A. No, sir; I dou't recollect. 

Q. Where was the vessel carried ou landing ^ A. She was landed 
up close to the mail dock. 

Q. She did not sink then in coming in ? A. She sunk as much as 
she could. 

Q. What was the cargo she had on board? A. Lumber. 

Q. Did you have a deck lo.id of lumber? A. Yes, sir. 

Q. How high was that piled above the rail? 

The Witnfss— The deck load ? 

Cou.NSEL — Yes. 

The Witness — Above the rail ? 

Counsel — Yes. 

A. That I cannot say exactly. 

Q. Give us an idea. A. About three feet to four feet. I don't 
know exactly. 

Q. The whole deck was covered \iith lumber, was it not? A. 
Y'^es, sir. 

Q. From rail to rail ? There was no passageway between the rail 
and the lumber? A. No, sir. 

210 Q. W^here were the sidelights hanging? A. In the mizzen 
rigging. 

Q. How high above the lumber ? A. That I don't know. 

Q. Who huug tliose lights out ? A. That I don't know. 

Q. Who set them? A. That I don't know. 

Q. Who usually set them ? A. Any of us who had the watch. 

Q. The men on the watch ? A. Yes, sir. 

Q. Who generally trimmed and attended to those lights? A. 
Well, I never seen them wanting any trimming or attending to, after 
thev were put out, until they were taken in again. 

Q. You never saw them taken in at all? A. Not before it got 
time. 

Q. Not before the morning you mean ? A. No, sir. 

Q. I mean who trimmed them after they were taken down in the 
morning, who trimmed them and fixed them for the next night? 
A. That I don't know; the steward I suppose. 

Q. Were you very frightened after you came out, after the collis- 
ion? A. No. I don't know that I was very frightened. 

Q. Were you tolerably frightened, were you a little scared? A. 
No. I don't know that I was in any ways scared, for I was certain 
the vessel would not sink. 

Q. Are you an able seaman ? A. Yes, sir. 

Q. How long have you been an able seaman ? A. About 25 years 
I suppose. 

211 Q. How long have you been sailing on this coast? A. 
Since 1868. 

Q. How long have you been in the employ of Simpson Bros ? A. 
I think I first went on the bark Rival, about 14 years ago. 

Q. Have you been sailing for them for 14 years? A. No. 

Q. In their employ? A. No, sir. 

Q. How many years have you been in their employ? A. What, 
steady ? Not at all, not steady. 



90 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. You have been sailing unsteady? A. Oh, yes. 

Q. What time did you got coflfee that morning? A. I cannot say 
exactly. 

Q. Give us any idea? A. No. I can not say not time. 

Q. "What was the date of this collision? A. I don't know that, 
sir. 

Q. What day of the week was it? A. I don't recollect that. 

Q. Did any one tell you to go and look at those lights after the 
collisiou, half an hour or so after the collision ? A. Not to my rec- 
ollection. 

Q. Why did you go and do it ? A. That is the usual thing for 
me to do, particularly after I saw the vessel the way she was. 

Q. What was the reason that caused you to go half an hour or so 
after the collisiou and look at the lights? A. I don't know 

212 that it was half an hour. It was not half an hour. It was 
natural enough for me to look and see if the lights was burn- 
ing. 

Q. I don't see why it is natural. It looks to me very unnatural. 
Can you give any reason why you did go ? A. This i^the side I 
was on, and I looked around to bee and the lights were burning. 

Q. How were the lights burning at the time you saw them ? A. 
Burning bright. 

Q. Did you testify before the United States Inspector about this 
matter? A. 1 have testified nothing only here, sir. 

Q. Did you not testify down stairs about this matter? A. Yes, 
sir. 

Q. Did you testify in the same way then as you do now ? A. Yes, 
sir; I have been asked things that I was not asked in that. 

Q. Who has talked with you about this matter to ask you what 
you were going to testify to ? A. Onl}' the gentleman in the office 
here the other day. 

Q. What office ? Bemis' office? A. I don't know, sir; in this 
building. 

Q. Has Mr. Simpson not talked with you to know what your testi- 
mony would be? A. No, sir; I never spoke a word to Mr. Simpson 
in my life. 

Q. No one spoke to you but the United States Inspector as to 
Avhat your testimony would be? A. That is all. 

Q. They did not tell you that they wanted to prove any way that 
you looked at the lights ? A. No, sir. 

213 Q. Did the captain ever speak to you about this ? A. No, 
sir. 

Q. Asking what you could prove? A. No, sir. 

Q. Ask whether you could see the lights? A. No, sir. 

Q. Anybody speak to you on that subject ? A. They have not. 

lie-direct. 

By Mb. McGiiaw — Have you been to sea since this collision ? A, 
Yes, sir. 

Q. On what vessel? A. In the Prussia. 

Q. What voyage have you been on ? A. Up to Blakel3\ I have 
been two voyages since. 



AMEnCAX BAUKENTIXE POnXLAXD. 91 

Q. Slie is not one of the Simpsons' vessels, is she? A. No, sir; 
She is one of Eenton, Holmes 

Q. When did you get into port again? A. I got in two weeks 
last Saturday. 

Q. When do you expect to go to sea again? A. I can't tell, sir. 

Q. Are you going the first chance you get? A. I shan't go at all 
at present. 

Q. You are on a strike just now ? A. Yes, sir. 

By Mr. McAllistkr — You are one of the strikers. I forgot to 
ask you that? A. I belong to the Union, sir. 

.Q. We all belong to the Union, but this is the other 
214 Union? Yes, sir. 

By Mr. McGraw — You said you were in Simpson Bros.' 
employ as much as fourteen j-ears ago? A. Yes, sir, I was in the 
bark Eival. 

Q. How often have you been in their employ since, up to the 
time you went in the Portland ? A. I was in the Portland 
once before, about eight years ago. I think with Captain Gage. I 
was in the schooner Sparrow one time. That was a good while 
ago; I can't sa}' exactly how long. 

Q. They have run a good many vessels on this coast — the Simp- 
son Bros.? A. Yes, sir; they have lots of vessels. 

Q. And in going in their vessels you have got berths the same as 
in vessels with other owners, have you? A. Yes, sir. 

Q. As soon as the strike is over, do you expect to go to sea ? A. 
That is my profession, sir; I tlon't intend to lie around doing 
notliinff. 

Q. When you can, you expect to go to sea, do you ? A. Yes, sir. 



215 Beit further remembered that the depositions of Joseph 

Pianey Bennett and James Daley were then and there taken 
in shorthand in the presence of the respective deponents, the read- 
ing and signing of said depositions being duly waived by counsel 
for the respective parties by the stipulation which is hereto affixed. 
Given under my hand and seal at the Ciij and County of San 
Francisco, State of California, this 18th day of September, A. d. 
1886. 
[Seal.] J. S. MANLEY, 

Commissioner U. S. Circuit Court, Northern District of California. 
[Endorsed]. Filed September 18th, 1891. 

Southard Hoffman, Clerk. 



216 (Title of Cause.) 

To Messrs. McAllister & Brown, Proctors for Claimants: 
Ton are hereby notified that Andrew Partro will be examined, de 
bene esse, in the above entitled case, on behalf of the libellauts, be- 
fore John H. Woodward, Esquire, duly appointed, by the Circuit 
Court of the United States for the Ninth Circuit, a commissioner 
for the District of Oregon, to take acknowledgments of bail and affi- 
davits, and also to take depositions of witnesses in civil causes de- 



92 PACIFIC COAST STKAIISHIP COMPANY VS. 

pending in the courts of the United States, pursuant to Section 863 
of the Revised Statutes, on the ninth day of May, A. D. 1887, at two 
o'clock p. M., at the office of said commissioner, No. 23 Union 
Block, in the City of Portland, in the District of Oregon, and you 
are hereby further notified to then and there appear and propound 
such questions to said witness as you may deem tit. 

The cause for taking the deposition of the above named 
217 witness is that he is about to proceed on a voyage to sea. 

Yours, etc., 

E. W. McGRAW, 

Proctor for Lihellants. 
San Francisco, May 3, A. D. 1887. 

[Endorsed:] Service of the within notice and a copy thereof is 
hereby admitted this 3d day of May, 1887. Bat we do not accede 
to this mode of taking testimony. 

McAllister k bergin, 

Proctors for Claimants. 



United States of America, 

District of Oregon, 

City of Portland. 

The President of the United State of America, to the Marshal of the 
District of Oregon, greeting: 
You are hereby commanded to summon Andrew Partro, if he be 
found in your bailiwick, to be and appear before me, J. H. Wood- 
ward, a commissioner of the Circuit Court of the United States for 
the District of Oregon aforesaid, at my office, 23 Main Block, 
218 Portland, Or., on the ninth day of May, 1887, at two o'clock 
p. M., to give testimony, and the truth to say, in a cause de- 
pending before me, wherein Asa M. Simpson et al. is complainant, 
and S. S. State of California is defendant. 
In behalf of complainant. 

Hereof fail not, under the penalty of the law, and have you then 
and there this writ. 

Given under my hand, this 9th day of May, a. d. 1887. 

John H. Woodward, 
Commissioner of the Circuit Court of the Thiited States for the District 
of Oregon. 



District of Oregon, ss. 

In obedience to the command of the within writ, I have served 
the same upon the therein named Andrew Partro by delivering to 
him personally, a subpcjena ticket thereof, at Portland, in said Dis- 
trict, on the 9th day of May, a. d. 1887. 

Pekumbpa Kelly, 

U. S. Marshal. 
By P. A. Maequam, Jr., 
Deputy. 



AMERICAN BARKENTIXE PORTLAND. 93 

219 (Title of Cause.) 
District of Oregon, ss. : 

Andrew Parko, a witness called on behalf of Libellant herein and 
residing at Portland, Oregon, more than one hundred miles from the 
place -nhere this cause is to be tried, and is about to proceed on a 
voyage to sea, being cautioned and sworn to tell the truth and being 
carefully examined, deposes and says as follows* 

Q. 1. What is your name, age, occupation and place of residence ? 
A. Name Andrew Parko, age thirty-two, occupation a sailor. 

Q. 2. Did you ship on any vessel on or about March 7th, 1886, in 
San Francisco? 

Objected to as leading. (Overruled.) 

A. Yes, sir. 

Q. 3. What was the name of the vessel ? A. Barkentine Port- 
land. 

Q. 4. Did you leave San Francisco in her at that time ? 

Objected to as leading. (Overruled.) 

A. Yes, sir, I did. 

Q. 5. For what port ? A. Here in Astoria. 

220 Did 3'ou return with the barkentine Portland to San 
Francisco ? 

Objected to as leading. 

A. Yes. 

Q. 7. State about what time in the month you left Astoria or 
Knapton ? A. Don't remember. 

Q. 8. State wdiat, if anything, occurred during the passage from 
Astoria to San Francisco, on or about midnight of April 6 ? A. We 
had a southeast wind and the wind shifted before we had the col- 
lision. 

Q. 9 What collision do you refer to '? A. The steamer ran 
into us. 

Q. 10. What time did you come on deck that night? A. Twelve 
o'clock. 

Q. 11. Where were you at the time of the collision ? A. I was at 
the wheel, sir. 

Q. 12. Did you see the steamer before or after you went to the 
wheel? A. After, sir; when I was standing at the wheel. 

Q. 13. State where she was and about how far away she was ? A. 
She was a good distance away from us. She came on the port bow. 
When she struck we were on the starboard tack. 

Q. 14. Did the steamer change her course any after you saw her 
till she struck ? A. I had to watch my steering and thought she 
was going to come about in our fore rigging. 

Q. 15. AVhat, if anything, did you do when you saw the 

221 vessel coming on ? A. I hallooed out to the captain. •He 
heard it and came on deck. 

Q. 16. What did the captain do? A He ran upon the deckload, 
and he just got up when she struck. 

Q. 17. What, if any, orders did you receive, and from whom at 
that time ? A. I had orders from the mate to keep close to the wind. 

Q. 18. AVhat efl'ect, if any, would bringing the vessel close to the 



04 PACIFIC COAST STEAMSHII' COMPANY VS. 

wind as you were ordered to do, have on bar headway ? A. Two or 
three knots slower. 

Q. 19. Did you see the barkentine's sidelights burning when you 
went to the wheel ? A. Yes, sir; the lights were burning brightly 
when I went to the wheel. 

Q. 20. How much wind was there at the time of the collision? 
A. There was not very much Avind, but a swell then. 

Q. 21. Before receiving the mate's orders to bring the vessel into 
the wind, about what course were you making? A. Norwest by 
west, what the vessel made by the wind. 

Q. 22. What was the condition of the weather as to being hazy 
or light, so you could see ? A. We had clear weather. We could 
see all the lights. 

Q. 23. What lights could you see at that time? A. Point Reyes, 
Faralloues light, the Point light and the Head light. 

Q. 24. Where did the steamer strike you, and what damage did 
she do? A. Cut the bow clean off to the water's edge. 

222 Q. 25. W^hat, if anvthing, did she do to the headgear of 
the barkentine ? A. It cut them off. 

Q. 26. How long have you been to sea? A. About fourteen years. 

Q. 27. What is your rate, able seaman or ordinary? A. Able 
seaman. 

Q. 2S. State, if in your opinion, this collision was occasioned by 
the fault or bad seamanship of the officers and crew of the barken- 
tine Portland. 

Objected to as incompetent. 

A. No, sir; it was not their fault. 

Q. 29. Where are you now employed ? A. On board the Glena- 
von. 

Q. 30. How long have you been in her? A. About five months. 

Q. 31. When did you ship in her? A. Sidney, Australia. 

Q. 32. For what voyage? A. I shipped for three years. 

Cross Exumiiialion . 

Q. 1. When did you leave San Francisco ? A. About three weeks 
after the Fourth of July. 

Q. 2. How long did you remain in San Francisco after the col- 
lision? A. I stayed till after the first case was tried, and I got paid 
off and I shipped on the Othea. 

223 Q. 3. Did you testify at the examination before the In- 
spector? A. Yes, I was a witness once when this collisiou 

was examined into. 

Q. 4. Have you talked with any one about this collision since it 
occurred ? A. Yes, I talked with Murphy in San Francisco. 

Q. 5. Did any person write out for you to sign a statement of 
what your testimony should be? A. He read it off. I did not un- 
derstand all of it. 

Q. 6. Where is that paper now? A. I don't know, sir. 

Q. 7. When was it read to you last? A. Before the examination 
in his office down there. 

Q. 8. Haven't you talked with any one since ? A. I have talked 



AMEKICAN BARKliNTlNE PORTLAND. 95 

with the captain and the crew of tLe barkentine. Tliey told me I 
would be wanted as a witness. I told them I was here. 

Q. 9. Did he tell you what he wanted you to swear to? A. He 
told me to say what I know. 

Q. 10. What time did you turn out the night of the collision ? 
A. iVelve o'clock. 

Q. 11. What time did you go to the wheel? A. About 2 o'clock. 

Q. 12. What time did the collision occur ? A. Between three and 
four. 

Q. 13. How far and in what direction from Point Bonita did the 
collision occur ? A. A. I can't tell about that — we was not very far 
off neither. 

224 Q. 14. Were you north or south of the Point light hou.se? 
A. We was north, sir. 

Q. 15. How far north? A. I can't tell that. 

Q. 16. How did you happen to look at the barkentine 's lights 
after you got up? A. The lights were burning so that in walking 
on the deck load they were shining in m}' face, and I could see them. 

Q. 17. Whose duty was it to trim the side lights ? A. The stew- 
ard put oil in lamp but I don't know trimmed them. 

Q. 18. Did you ever see them taken down? A. No, sir. 

Q. 19. Did you ever see them tiimmed? A. No, sir. 

Q. 20. How far was the steamer aAvay when you first saw her? 
A. I can't tell — she was a good distance oflf. 

Q. 21. How far was she away when, as you say, you thought she 
was coming into your fore rigging? A. About three hundred yards 
like that, 

Q. 22. When was it that the mate ordered you to hold the bark- 
entine to the wind ? A. When she was about 300 yards away, a 
little before. 

Q. 23. Was that before or after you called out? A. Before. 

Q. 24. Did the captain get on deck before or after she struck? 
A. He just got up on the deck load. 

225 Q. 25. Who called out first from the barkentine? A. I 
heard the watch and mate sing out: " You steamer, what you 

try to do?" and then I hallooed out to the captain. 

Q. 26. Where was the mate when you called the captain? A. 
Between the main and fore rigging on the deck load, 

Q. 27. Was there any torch displayed from the barkentine before 
the collision? A. No, sir; I don't know that. 

Be-direct Examination. 

Q. 1st. Where does the steward live; fore or aft? A, He lived 
aft. 

Q. 2. Where was the lamp-room? A. Aft. 

Q. 3. The men forward, including yourself, were never allowed in 
the after end of the ship unless they were called in on duty, were 
they? 

Objected to as leading and immaterial. 

A. I don't understand. 

Q. 4. Were you ever allowed in the cabin of the barkentine 



9G PACIFIC COAST STEAMSHIP COMPANY VS. 

Portland while at sea, other or unless ordered there? A. Not 
without orders. 

Q. 5. You could not then have known whether (he steward 
trimmed the lamps or not? A. I can'ftell that; the sailors don't 

know anything about lamjis. 
22G Q. G. You were asked if some one wrote a statement of this 

collision for you to sign. Was that statement the truth as it 
occurred; was it so? A. It was true as I understood it. I can't 
talk very good English. his 

Witness: Andrew X Parko. 

John H. Woodward, mark. 

U. S. Commissioner, 



(Title of Cause.) 

District of Oregon — ss. 

I hereby certify that on the 9th day of May, 1887, before me, 
John H. Woodward, Commissioner of the Circiiit Court of the 
United States tor the District of Oregon, at my office, 23 Union 
Block, in the City of Portland aforesaid, personally appeared, pur- 
suant to notice and subpceoa hereto annexed, at and between the 
hours of 2 and 5 o'clock in the afternoon of said day, the witness 
named in said notice, and Edward N. Deady, Esquire, appeared as 
counsel for libellant, and Cyrus A. Dolph, Esq., appeared as coun- 
sel for respondent, and the said Andrew Parko, being by me first 
duly cautioned and sworn to testify the whole truth, and being care- 
fully examined, deposed and said as appears by the depo- 
227 sition hereto annexed. 

And I further certify that the said deposition was then and 
there reduced to writing by me, and was, after it had been reduced to 
writing, subscribed by the witness, and the same has been retained 
by me for the purpose of sealing up and directing the same to the 
clerk of the Court as required by law. 

And I further certify that the reason why said deposition was 
taken was that the said witness resides more than one hundred 
miles from the place where this cause is to be tried, and is about to 
proceed on a voyage to sea. 

And I further certify that I am not of counsel or attorney to 
either of the parties, nor am I interested in the event of the cause. 

And I further certify that the fee for taking said deposition, 
19 85, and for postage and register of same. 15 cents, has been 
paid to me by the libellant and the same is just and reasonable. 

Id testimony whereof I have hereunto set my hand and private seal 
(having no official seal) at the city of Portland, State of Oregon, 
this 10th day of May, a. d. 1887. 

John H. Woodward, 
[Seal] Coinmissioiier Circuit Court 

V. S. District ofOre</on. 
(Endorsed): Published and filed this 28th day of July, 1887. 
Southard Hoffman, Clerk. 

By J. S. Manley, Deputy Clerk. 



AMERICAN BARKENTISE PORTLAND. 07 

229 (Title of Cause.) 

San Fiuncisco, December 27tb, 1886. 

COUNSEL APPEARING. 

E. W. McGraw, Esq., Proctor for A. M. Simpson at. al. 
C. Pa«e, Esq. 

McAllister and Bergin Esqs. , Proctors for Pacific Coast Steam- 
ship Company. 

D.VMEL MuLLAXE, called as a witness on the jiart of the Pacific 
Coast Steamship Company, and after being first duly sworn, deposed 
and testified as follows: 

230 Direct Examination. 

By ]\[r. McAllister — What is vour name '? A. Daniel Mullane. 

Q. Your age? A. 27. 

Q. Are you a seaman ? A. Yes, sir. 

Q. An able seaman? A. Yes, sir. 

Q. How long have you been an able seaman? A. 7 years. 

Q- Did you ship on board the barkentine Portland ? A. Yes, 
sir. 

Q. In April last? A. In April last, I think it was; I could not 
exactly tell whether it was the last of March, or the beginning of 
April. 

Q. Where did you ship on the barkentine Portland? A. San 
Fraucisco. 

Q. Where did you go to then? A. Some called it Cementville 
and otliers Knajipton, Columbia Biver. 

Q. Did she take a cargo on board there? A. She took a cargo 
on hoard tbere. 

Q. What kind of a cargo ? A. A cargo of spruce lumber. 

Q. And then she left the Columbia Biver and came to San Fran- 
cisco? A. Yes, sir. 

231 Q. Do you recollect what day it was or what night it was 
when you arrived off the heads of .*an Francisco ? A. We 

arrived off the heads of San Francisco, I think, on the 7th; I could 
not exactly tell the date of that either, but I imagine it was on or 
about the 7th of April. 

Q. 7th of April. 188G? A. Yes, sir. 

Q. You recollect the collision with the steamship State of Cali- 
fornia, do you? A. Yes, sir; I recollect the collision. 

Q. What time of the night did that collision take place ? A. By 
our time, about half past 3. 

Q. Whose watch was on deck at the time of that collision ? A. 
The chief mate's, Mr. Peterson. 

Q. That is the port watch ? A. The port watch. 

Q. What time did you come on deck that night? A. 12 o'clock. 

Q. How long did you remain on deck from that time? A. I did 
not go below any more until we arrived in San Francisco. 

Q. Then you were on deck from 12 o'clock until the collision? 
A. Until the collision. 



98 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. Wiio was at the helm at 12 o'clock? A. A man by the name 
of Andrew — be is a foreip;ner, I dou't know the other name. 

Q. How long did he stay at the helm ? A. He was at the helm 
from 2 to 4. 

Q. But I asked yon who was at the helm at 12 o'clock? A. I 
was. 
232 Q. How long did you stay at the helm ? A. Till 2 o'clock. 

Q. And you were at the helm from 12 to 2 o'clock? A. 
Yes, sir. 

Q. And this man, Andrew, was on from 2 to 4? A. Yes, sir. 

Q. Who was the other man on the deck from 12 o'clock to 2 that 
niglit? A. Andrew; Bob; I can't call his other name; he is a for- 
eigner — could not talk English much. 

Q. Just previous to the collision, what tack was the barkentine 
Portland on? A. Starboard tack. 

Q. How was she sailing, free or close hauled? A. Close hauled 
under easy sail. 

Q. What was the first notice you had of the presence of the 
stearasiiip State of California? A. The first notice I took of the 
steamship — well, I reported her long before that; I reported her 
pretty near an hour previous to the collision. 

Q. Who did you report to? A. Peterson, the chief mate. 

Q. After you left the helm at 2 o'clock were you on the lookout 
then from 2 o'clock to the time of the collision ? A. This man that 
was on the lookout, we were M-alkiug together, I can't remember 
whose lookout it was — -but the man who was on the lookout, I (hink 
he could not talk Eoglish at all, so when I saw the steamer, I re- 
ported her to the mate. 

Q. What was the first thing you saw of the steamer when you 
reported her? A. I saw her mast headlight and one side 
233 light quite plain. 

Q. How far off was the steamer at that time, should you 
judge? A. I saw her saloon lights, that was it. I should judge she 
wr.s eight or nine miles from what I could see of her. 

Q. What happened after that if anything? A. There was noth- 
ing particular occurred after that until orders to go and pump ship. 
Q. Who gave those orders to pump ship? A. The chief mate, 
Peterson. 

Q. How long before the collision were these orders given? A. 
Tin-y wei'e given about, I should judge, about ten minutes; proba- 
bly less than that. I could not exactly how long: I know it was a 
short time. 

Q. What occurred after that order of the mate's to pump ship? 
A. They all went down below and there is a square hole — it is ex- 
actly like a well. 

Q. In the deck loak? A. Yes, sir. It is about ten feet high on 
the main deck. I stood on the<leck and the mate asked me, " Why 
don't you pump ship"? Sajs I, ''Don't you see that steamer"? 
•' Never mind the steamei", pump ship." The next question was, 
" Is your lights burning bright "? says I to him. "Nevermind the 
lights," says he, "pumi^ ship." "No," says I, "not until that 
steamer passes." When I saw they were going to come together, I 



AMERICAN liARKKNTINE rOETLA^D. 99 

run to tlie holil aud called the men back and said, " Come on deck 
as quick as you can, (here will be a collision directly;" and 

234 they got on to the deck as quick as they could. I was stand- 
ing on the deck at the time of the collision. 

Q. Was there any change of course in the Portland at any time 
previous to the collision? A. Whether there was any change of 
cour.so or not I could not swear, but whether ib was the time of the 
collision or just a minute or two before the sails came back, I could 
not say. 

Q. The sails came back; Avhat do you mean? A Came right 
back. Whether when she struck or before that I could not say. 

Q. How was the wind that night, what kind of a breeze was it? 
A. According to what I should judge, at intervals it was a six-knot 
breeze, squally, light squalls. 

Q. What had been the custom on board that vessel, the Portland, 
in reference to trimming the lights, during the time you have been 
on htiard of her, trimming your side lights or red and green lights? 
A. Through the night we have trimmed them )jrobably once and 
twice to my knowledge, and sometimes three times. 

Q. Why did you do that? A. We had done that because the 
liglits — ivhether it was on jiccouut of the lamps or oil, I could not 
say — but frequently the glass of these lights would turn dark. 
Smoke would get on the glass and it would turn quite dark and 
would not be visible from very far. 

Q. Who would generally do that trimming of the sidelights when 
you would have them trimmed ? A. Any man would be told 

235 that would be close handy, any of the men for that business. 

Q. Between twelve o'clock and the time of the collision on 
this night, were either of the sidelights, port or starboard lights 
trimmed? A. Not that I was aware of. 

Q. You were on deck all the time? A. I was on deck and at the 
helm two hours. 

Q. Where were your port and starboard lights? A. On the 
mizzen rigging 

Q. Could you see the mizzen rigging from your position at the 
helm ? A. Yes, sir. 

Q. Did you notice at the time of the collision, or just after the 
collision the position of the port light on the barkentine Portland? 
A. Yes. sir. 

Q. What was its condition? A. The condition of the port light 
after the collision — I don't exactly recollect how long after the col- 
lision, but it was a short time, I looked to the port light and the 
glass of the port light was blank and could not be visible very far. 
Of course the light was not out. 

Q. Was the mate on deck from twelve o'clock until the collision? 
A. Yes, sir; until the collision to my knowledge, as far as I could 
see. 

236 Cross- Examination. 

By Mr. McGraw — After you got to San Francisco on the 
Portland how long did you remain here ? A. I remained here I 
should judge about four days. I could not exactly tell the exact 



lOU PACIFIC COAST STEAMSHIP COMPANY VS. 

time. Probably Capt. Debney knows the rlate the Queen of the 
Pacific sailed, that is the time, from the time this vessel arrived 
until tlie Queen of the Pacific sailed to the Sound. 

Q. Dill you sail on the Queen of the Pacific? A. I sailed on the 
Qaeeu of the Pacific to Astoria. 

Q In what capacity ? A. As passenger. 

Q. Cabin passenger? A. No; steerage passenger. 

Q. Who paid your passage ? A. I paid it myself. 

Q. Have a pass? A. No pass whatever. 

Q. How long did you remain in Astoria? A. I remained in 
Astoria from April until last Christmas day, the 2;3th of tliis month. 

Q. "Where did you go then ? A. I came down to San Francisco. 

Q. Where did you stop when you were here, after vou got here 
on the Portland ? A. I stopped at the North Pacific Hotel. 

Q. Do you know the name of the landlord ? A. The landlord, I 
don't know the name of, but the proprietor of it is Capt. 
Wendt. 

237 Q. What were you doing in Astoria at the time you were 
there? A. Fishing, netting, various labor. 

Q. Capt. Debney knew you went up on the Queen of the Pacific? 
A. I don't know whether he did or not. 

Q. Wliy did yoia say that you thought that Capt. Debney knew 
when you went up? A. He could tell when the Queen sailed, I 
could not tell the Queen's sailing day. 

Q. How long have you been acquainted with Capt. Debney ? A. 
I have just got acquainted with him today. 

Q. Where did you meet him ? A. I met him on Market street. 

Q. Did you introduce yourself to him? A. No, sir. 

Q. Did he introduce himself to you? A, Yes, sir. 

Q. Who was with you when you met? A. No one at all. 

Q. What did he say when he met you ? A. He asked me if my 
name was Dan Mullane, and I said yes. 

Q. Had you never spoken to him before that? A. Not before 
that to my knowledge. 

Q. Never sailed with him? A. Never sailed with him. 

Q. Whereabouts on Market street was this? A. It was right 
opposite Goodall, Perkins' office. 

Q. Had vou been to Goodall, Perkins' oflace? A. Previous to 
this I had. ' 

Q. When ? A. I should judge it was about 20 minutes past ten 
today. 

238 Q. What did you go up there for? A. I went up there 
with Gov. Perkins. 

Q. W^hat for? A. To have an interview with Capt. Debney, if I 
could possibly find him up there, but at that time he was not there. 

Q. How long have you known the Governor ? A. I have known 
him by sight but not on speaking terms until to-day. 

Q. Who introduced you to him to-day? A. The jiurser of the 
Queen. 

Q. Where did he introduce you ? A. On the Oregon dock. 

Q. What is the purser's name? A. I forget his name. 



AMEKICAN BARKEJsTINE PORTLAND. 101 

Q. How long had you known that purser? A. Last Christmas 
day I first saw him on the dock at Astoria. 

Q. Who introduced you to him? A. Mr. Noyes. 

Q. Who is Mr. Noyes, what is his business ? A. He is the agent 
for the Oregon llailroad and Navigation Company, in Astoria, 
Oregon. 

Q. How long have you known him? A. Two weeks previous to 
this time, somewhere thereabout; I could not tell. 

Q. How did you come to make his acquaintance? A. By a serv- 
ant on the dock. 

Q. What was the servant's name? A. I can't tell his name. 

Q. Did he introduce you? A. No, he didn't introduce, but 

239 he told me I was wanted in this case down to San Francisco, 
the case of the collision between the Porlland and the State 

of California, and had best go and see the said Mr. Noyes. 

Q. So you went to see him? A. Yes, sir. 

Q. And as a result of seeing Mr. Noyes, you came down on the 
Qneen of the Pacific ? A. Yes, sir. 

Q. What way did you come down? A. As a passenger. 

Q. Cabin? A. Well, I could have come down cabin but I came 
down steerage. 

Q. Pay your fare? A. No. 

Q. Who paid it ? A. The Pacific Coast Company, I believe. 

Q. Did you have any conversation with Mr. Noyes about what 
you would swear to if you come down ? A. No; not in particular. 

Q. Did you have any conversation with the juirser after that, as to 
what you would swear to? A. No, sir; not any. 

Q. Did you have any conversation with Gov. Perkins as to what 
you would swear to ? A. No, sir. 

Q. Did you have any conversation with Capt. Debney as to what 
you would swear to ? A. A few remarks; yes, sir. 

Q. Did you tell him what you would swear to? A. Not quite, I 
didn't. 

Q. Then, until you met Capt. Debney this forenoon, was 

240 that the first time you told anybody what you would swear to 
in this case ? A. Yes, sir; that is the first time, J think. I 

have said a few remarks before in a letter written from Astoria from 
me to Captain Debney, but that is about all. 

Q. When was that letter written ? A. I have not got the date. 

Q. About when was it ? A. It is about two weeks ago, I guess. 

Q. Who was that letter addressed to ? A I didn't address the 
letter myself. 

Q. Who addressed it? A. I think it was the agent, Mr. Noyes, 
in Astoria. 

Q. Have you any copy of that letter? A. No, I have not a copy 
of it. 

Q. Do you know what was in it ? A. Yes; I know what was in it 
perfectly well, for I wrote it. 

Q. What was in it ? 

Counself on behalf of the Pacific Coast Steamship Company, 
objects to any statement as to the contents of a written instrument. 



10 2 PACIFIC COAST SlEAMSHIf CuMPANY VS. 

unless the instrument is produced or its loss accounted for, and that 
no proper foundation Las been laid. 

A. What was in the letter, so far as I recollect in regards to the col- 
lision between the Portland and the State, was as follows: I think 
the letter begins this way. "Came on deck at 12 o'clock (and I 
could not be sure if it does begin this way or not, it has slipped my 
memory since), stayed at the helm until 2 o'clock. Left the helm 
previous to the collision; reported the steamer on the star- 

241 board bow; there was light squalls. Was ordered to pump 
ship by the officer of tiie deck; told the officer of the deck 

'don't you see the steamer.' 'Never mind the steamer, pump ship.' 
Asked the officer of the deck ' how is his lights ' ? ' Never mind the 
light, pump ship.' I refused to pump ship until the steamer 
passed." That was about all the contents of the letter. 

Q. Did you ahow that letter to anybody before you sent it? A. 
No, sif. 

Q. Had you made a similar statement as that to anybody before 
you wrote that letter ? A I made the statement, but not exactly 
like that, before or after I came in on the Portland. I was not 
asked them points, so I didn't make the statement just as that state- 
ment is; I was not asked for the particular points of the collision. 

Q. Where was that statement made? A. At a notary's office, I 
forget his name. 

Q. Besides that statement you made to the notary did you make 
the statement you made to anybody else previous to that? A. No, 
nobody at all. 

Q. How did you come to send that letter to Capt. Debney? A. 
Well, it was partly by accident, when I heard the case was not 
settled yet. 

Q. What was the accident? A. The accident was, a man told me, 
the conversation ranged that way, about the collision, witli two or 
three of the men in Astoria, and this man said it was not settled 
and I was required in San Francisco as a witness in the case. I 
understood before this that it was settled and each one paid their 
own damages. 

242 Q. How did you understand that? A. I heard it from 
hearsay. 

Q. Who told you? A. Some acquaintance from the city. 

Q. Who was he? A. I could not recall their names at present. 

Q. When was it, before you left here ? A. No, last summer some 
time. 

Q. Who were these men that had this conversation and told you 
that you were wanted in San Francisco ? A. A man by the name of 
Johnson; he was in the schooner Faulkenberg. 

Q. Was he a common sailor ? A. He was at that time I believe. 

Q. Where is he now ? A. I could not tell where he is now. 

Q. He told you he knew you were wanted ? A. And likewise the 
chief mate of that vessel told me, Bradley. 

Q. He told you you were wanted ? A. Yes, sir. 

Q. Did you tell Johnson and Bradley what you could swear to ? 
A. No, never. 



AMERICAN BAUKKNTINE PORTLAND. 103 

Q. Dill yon get anything besides your passage for coming down 
here? A. They engaged me by the day. 

Q. How much do they pay yon a day'? A. $3 a day. 

Q. What to do? A. To come down here on behalf of the 

243 Pacific Coast Company. 

Q. I suppose 3-ou would as soon come down here on be- 
half of the Pacific Coast Company for $3 a day when the case came 
on for trial as to come now ? 

The Witness — I don't thoroughly understand? 

[Question is read to the witness.] 

A. It makes no difference to me. 

Q. How Jong does your engagement last? Up to the time of the 
trial ot the case? A. I believe I have got the agreement in my 
pocket. As long as I am required; no time specified. 

Q. You have a written agreement, have you? A. Yes, sir. 

Q. Let us see it? A. This is a copy of it. [Witness produces 
paper.] There is no time specified. 

Q. Who suggested putting this agreement in writing? A. I sug- 
gested it myself. 

Q. Why? A. That is the way I generally transact business. 

Q. Are you accustomed to this class of business, being a witness ? 
A. No, sir. But any agreement for leaving one State to go to 
another I want it in writing, for any company or any corporation or 
anybody. 

Q. Then you wanted that agreement for your own protection? 
A. Yes, sir; for my own protection. 

Q. ISo as to be sure of getting your three dollars a day? A. 
Yes, sir. 

Q. Why didn't you have it signed on behalf of the company if 
you wanted it for any protection ? A. I believe Mr. Noyes 

244 signed it on behalf of the company. 

Q. You think he did? A. Y^'es, sir. 

Q. Was it with Mr. Noyes you made this agreement ? A. Yes, 
sir; Mr. Noyes. 

Q. And at the time you made this agreement did you tell Mr. 
Noyes what you were going to swear to? A. No, sir; I didn't tell 
Mr Noyes anything about this case at all. 

Q. Was this agreement before or after you wrote this letter to 
Ca|)tain Debney? A. After I wrote that letter. 

Q. How long after? A. I could not exactly say; three or four 
days after. Time enough to have a return letter come to Astoria. 

Q. ileturn letter from where? A. From the city, I believe, San 
Francisco. 

Q. Are you getting anything more than $3 a day? A. No, only 
just free hotel and free passage. 

Q. Do you get anything more ? A. No. 

Q. Get any money? A. No. 

Q. When do you expect to go back to Astoria? A. Whenever 
they are done with me; stay as long as I am required. 

Q. Do you expect to go back to-morrow? A. I don't 

245 know, sir; if they require me to stay I shall stay; if they re- 
quire me when I get done to go back by the company, I 

shall do so. 



104 PACIFIC COAST STEAMSHIP COMPANY VS. 

Q. When you went ou dock at 12 o'clock, which tack was the 
bark on ? A. The bark was ou the port tack. 

Q. When did she get ou the starboard tack'? A. At 2 o'clock. 

Q. Did you look at the lights yourself at auytiiuB iu that watch 
before that collision ? A. I noticed the liglits when I left the helm. 

Q. How were they then'? A. They were all right, burning 
bright. 

Q. Was it before or after you left the helm that you saw the 
steamer State of California'? A. After 1 left tiie helm. 

Q. How long after'? A. I should judge about an hour; probably 
a little over. 

Q. Whereabouts on tiie vessel were you standing when you first 
saw the steamer'? A. I was standing on the deckdoad walking 
athwart ships. 

Q. Whereabouts on the deck load were you walking? A. Afore 
the mainmast and abaft the foremast. 

Q. Betu-een the mainmast and foremast? A. Yes, sir. 

Q. Could you not see the lights from there? 

The Witness— Which, our lights? A. Yes? A. Not un- 

246 less you got to look at them; unless you wanted to see them 
particularly. 

Q. Were you walking from rail to rail athwart ships? A. No, 
not from rail to rail. 

Q. Where were you walking? A. I could not tell vou exactly, 
the exact distance of it. I don't recollect how far, but I know I was 
walking athwart ships. 

Q. Who was walking with yoa? A. This man names Bob, some- 
thing. 

Q. BobBressen? A. Bob Bressen, I believe that is his name. 

Q. Who saw tlie steamer first, yoa or Bob ? A. That I could not 
exactly tell. He was asking me the names of the lights, the Faral- 
lones and Point Keyes. 

Q Where were the other men? A. The other men were walking 
there too, to my knowledge; to the best of my knowledge they were 
on deck. 

Q. Some one at the wheel was there not? A. Except the men 
on the wheel, the oflicer and all were walking. 

Q There were four of you in that portion of the ship between 
the mainmast and foremast? A. The mate sometimes walked aft, 
he was walking fore and aft. 

Q. How long before the collision was it you say they pumped 
ship? A. Pumped ship, pumped ship by our time I believe, say at 
half-past three. 

247 Q. Where was the steamer then? A. The steamer then 
was on our starboard bow. 

Q. How far off? A. I could not tell you exactly how far she was. 
If I knew how fast she was going I might form an idea. 

Q. How long were they pumping ship? A. They didn't pump 
ship at all. 

Q. How long were the men down in the hold ? A. I should judge 
about two or three minutes. 

Q. What time did you say the collision was? A. I should judge 



AMERICAN BARKLNTINE PORTLAND lOS 

by our time about liall'-past three. Never looked at any clock, but 
that was tlie usual time the}- were pumping her out, it was about 
tbat time I should judge, about half-past three or twenty minutes 
to four. 

Q. They were down in the hold at the time of the collision? A. 
I don't know whether Ihey were down in the hold when the vessels 
came together or not, when I saw they w^ere going to foul I called 
them up. 

Q. Which came up first? A. I could not tell. 

Q. What did they say when you called them up? A. I could not 
say; my attention was called to the steamer at that time. I didn't 
notice what they said or wliat they done. 

Q. You had no curiosity to look at the lights of the barkentine 

then before the collision? A. No, sir. 

2i8 Q. And after you saw the steamer? A. No, sir; I had no 

curiosity to look at the lights. I asked the mate previous to 

this if his lights were burning bright and he told, "Never mind the 

lights, you go and pump ship," and I refused. 

Q. Did you ask the mate more than once how were the lights? 
A. I asked him: " How nre your lights, are they burning bright, 
don't you see the steamer ?" And he said : " Never mind the lights 
and never mind the steamer, pump ship." And I refused. 

Q. Did you ask the mate that more than once? A. I asked him 
if his lights were burning bright, and he said, "Never mind the 
lights," and he said, " Never mind the steamer." 

Mr. McGraw — Never mind that, I think you have got that story 
by heart. 

The Witne>s — Yes, I think I have. I told him I would not 
pump until after the steamer had ]iassed. 

Q. Did any one lell you the value of coming down here and giv- 
ing such te.stimony ? A. No, sir. 

Q. And the company hired you to come down here without know- 
ing what jou were going to testify to? A. I gave them the contents 
of the letter; that is all the company had to work on. 

Q. Then you did not ask the mate at that time how the lights 
Mere more than once ? A. Not to the best of my knowledge. 

Q. And that was his answer, "Never mind the lights"? 
249 A. "Never mind the lights"; yes, sir. 

Q. He didn't make any other answer? A. No, sir; he 
didn't make a move to look at the lights. 

Q. He didn't tell you that the lights were burning bright? A. 
No, sir. 

Q. And that is the only time you asked him ? A. That is the 
only time. 

Q. How is when you went before the notary you didn't make any 
statement of that kind ? A I was not asked about those points. 

Q. Were you not asked before the notary to give your version of 
what happened before the collision ? 

Mr. McAllister — I object to any examination of the contents of 
the ]'a])er before the notary unless the statement is produced and 
brought before the witness. 

The Witness — There were several questions asked me before the 



lOG PACIFIC COAST STEAMSHIP COMPANY VS. 

notan*, but not any particular question. I was asked if I noticed 
tlie lights, not wLeu I noticed the lights. I was asked if I noticed 
the lights before the collision. I believe this is never asked — this 
question of me about the lights. 

Q. Were you not asked to give a full accouiit of the affair at the 
collision ? A. 1 was asked to tell what I knew about it on that oc- 
casion 

Q. Why didn't you tell then ? A. I tell you what I have told here, 
that they never asked me; he never asked me about the lights. 

250 Q You say he asked you to tell all about the collision ? 
A. Yes, sir. 

Q. Why didn't you state this? A. I have said it occurred, part 
of what I stated here to-day. 

Q. Where was the office of this notary before whom you made 
this statement ? A. lam not sure; I don't know. It was some- 
where I think on Montgomery St., if I am not mistaken, but I could 
not tell exactly the name of the street. 

Q, Is that the statement you signed and swore to before the no- 
tary [showing a paper] ? A. Please read it. 

Q. You know your handwriting, don't you? A. I know my writ- 
ing. 

Q. Your signature is there — ^Daniel Mullaue ? A. Y'es, that is my 
signature. 

Q And this is the statement that you made ? A. Yes, that is my 
statement, I think. 

Q. Do you want it to be read to you to be sure? A. Y'es, you 
can r-ead it; I cannot be l)etter able to get an idea if you read it. 

[Counsel reads the affidavit of Daniel Mullane, anci the same is 
hereto attached and is marked "Portland Exhibit A. "J 

The Witness — The captain made out the greatest part of the 

statement, the captain of the aforesaid barkentine Portland. I 

didn't make out the whole of that statement, and I was only asked 

some little question, if J saw the lights. I don't believe to 

251 my knowledge that I said in that statement, that we all stood 
on the deck shouting, because they were not all on deck. 

The only one that shouted was mate Peterson, that mate of the 
vessel. 

Q. Y"ou say Captain Donnely made out the greater portion of that 
statement? A. Capt. Donnely instructed me, the greater part of 
the statement, how to make it out and how it was done. 

Q. Captain Donnely instructed you ? A. Yes, to say so and so 
and so and so. The only part of the statement that I made out my- 
self was about the lights, and about her being equipped and vic- 
tualled for sea as well as any vessel, and about our cros.sing Colam- 
bia Iliver bar and southeast winds. But about the last jiart of the 
statement, I deny; about us all standing and shouting to the 
State. 

Q. Was that read over to you before you signed it ? A. I could 
not swear whether it was or not, sir. 

Q. If it was read over to you and there was anything, why did 
you sign it and swear to it? A. I could not say whether it was read 
over or not, and in fact, I thought it would not be as serious as it is 



AMERICAN BAItKENTINE PORTLAND. 107 

at )ii'esent. I thouf^bt it would only be a preliminary examination. I 
thought it woukl not be half as serious as I have learned it is 
since. 

Q. Is there any particular exception in regird to your shouting 

that the -iffidavit is incorrect in '? A. No; there is nothing in that 

affi 'avit incorrect only in the occurrence of them all shouting. 

25'2 Q. Otherwise the alHdavit is correct, is it? A. Except 

that I noticed that the lights after the collision, that is not 

in this affidavit; bat I noticed our red light. 

Q. What do you say now was the answer the mate gave when you 
asked him how the lights were ? A. He said " Never mind the 
lights." 

Q. That is the only answer he made ? A. Yes, sir. 

Q Why did you swear before that he said the lights were burn- 
ing brightly ? A. I didn't swear to that. 

Q. You didn't swear to it? A. No; the lights were all right; 
that is what I said, and I didn't swear that they were burning 
briglit. I believe I made that remark before the Notary. 1 believe 
the Captain and the men was to say, they wei-e all right. I was in 
last and I believe I said the lights were all rigbt. "Never mind 
the liglits, the lights were all right." 

Q. You said that the lights were all right? A. "Never mind 
the lights, the lights are all right." 

Q. Why didn't you get that in before the Notary? A. I tell you 
sir, that I didn't think the case was serious, and I believe there were 
other persons on the vessel besides myself that heard him pass 
them remarks. 

Q. You say you boarded with Capt. Wendt at the North 
253 Pacific Hotel? A. Yes, sir. 

Q. After you gave your affidavit before the Notary you 
heard of an investigation that was being made by the United States 
autliority ? A. Of nothing, no more about it until I think it was 
sometime in July when I heard about it next. 

Q. After you gave this statement before the Notary were you not 
told that you would have to go before the United States Inspectors ? 
A. Not to my knowledge, sir. 

Q. Didn't Capt. Wendt tell you that you were wanted before the 
Inspector to make a statement? A. No. sir; he didn't tell me any- 
thing of the kind. 

Q. And didn't you tell Capt. Wendt that you didn't propose to 
give any more testimony in this case unless you got paid for it ? 
A. I didn't tell him no such thing. 

Q. You are quite as certain of that as anything else that you 
have testified to? A. The only question was, I said "Captain 
Weudt, if Mr. Simpson wanted me to stay down here in the hotel 
I would like to see him pay me, not to go and pay my own hotel 
bill and waste my time down here." 

Q. Did not you tell Capt. Wendt, very soon after you made this 
statement before the Notary, within a day or two, in this city and 
at this hotel, the Pacific Hotel, that you would not give any more 



108 PACIFIC COAST STEAMSHIP COMPANY VS. 

testimony in regard to this collision unless you got paid for 

254 it, or words to that effect? A. I told him that I would not 
stay in San Francisco unless I got paid for it. I was going 

to work in Astoria, going fishing, but in regard to my giving the 
statement before the Court, I never mentioned Court to Captain 
Wendt. 

Counsel for the barkentine Portland, asks to have the agreement 
between the witness and the Pacific Coast Steamship Co. put in 
evidence. 

By Mr. McAllister — You have not got any but the one copy ? 
A. No, sir. 

Mr. McAllister — It can be copied into the record. (The agree- 
ment produced by the witness was in the words and figures follow- 
ing, to wit:) 

"(Printed heading.) 

Oregon Railway and Navigation Company, [ 
Astoria Station, December 23rd, 1886. j 

I hereby agree to go to San Francisco for Goodall, Perkins & Co. , 
general agents of the P. C. S. S. Co., and to remain there as long 
as Ihey shall require me to do so in consideration of my receiving 
three ($3) dollars per day and board, from the day I leave Astjoria 
until I return. And I hereby agree to return as soon as they shall 
instruct me to do so, or claim pay only for the time necessary and 
required to come from San Francisco to Astoria, Oregon 

(Signed) Daniel Mullane. 

Witness Sig. : J. G. Louxsbury, 

C. N. NOYES. 

Copy. 

255 Q. Who gave you that copy? A. Mr. Noyes. 

Q. Did you ever see this man who was on your watch 
whose name you do not know, who could not speak English. A. Not 
since. 

Q. You have not? A. I have never seen him since I left the 
Portland, I believe. 

Q. And you do not know where he is? A. No, I do not. 

Q. When you go back to Astoria do you propose to remain there? 
A. Yes, sir; I propose to remain in Astoria. I have a contract 
there that will take me a few months to finish, and I expect to get 
another one. 

Q. How long have you been to sea? A. I have been to sea since 
the fall of 1872, T believe, some time in October. 

Q. Have you been in any higher position than common seaman ? 
A. Yes, sir; I have been second oflicer. 

Q. What vessel were you ever second officer of? A. I was second 
officer of the Tre^a Wolfe in the eastern coast. I never held a posi- 
tion as second oflicer on this coast. 

Q. How long have you been on this coast ? A. I have been on 
this coast since 1883; I left the ship Willie Pieed. 

Q. What vessels have you been sailing on on this coast? 
256 A The Pacific Coast Steamship Co., Simpson's and one of 
the Jackson vessels. 

Q. When did you work for the Pacific Steamship Co.? A. I left 



AMERICAN BARKENTIXE PORTLAND. 109 

the last of their steamers that I was ou two years ago last Christmas 
Day, (ibnut. 

Q. What steamer was that? A. San Jacinto. 

Q. Where was she runninq? A. Down south; Monterey. 

Q. What capacity were yovi working in ? A. Seaman. 

Q. Where were you boru ? A. At Queenstowu, Ireland. 
Q. What year did you come to this country ? A. 1861. 

257 Re-direct. 

By Mr. McAllister — How long have you lived in Oregon ? 
A. I lived there one time before, during fishing, but right steady 
along 1 have lived in Oregon siucfi last April. 

Q. AVhen j'ou went up ou the Queen of ihe Paciffc ? A. Yes, sir. 

Q. You say you have a contract there now ? A. Yes, sir. 

Q. In reference to what? A. Making salmon nets. 

Q. You have that contract bow? A. Yes, sir. 

Q. You have left that contract to come down here? A. Yes, sir. 

Q. And as soon as you have given your testimony here, your 
business will cease and you will go right back ? A. As soon as they 
send me. 

Q. You have no business here of your own ? A. No, sir. 

Q. You have come down here by request of Mr. Noyes ? A. 
Yes, sir. 

Q. Under the contract that you have shown in evidence? A. 
Yes, sir. 

Q. What day was it after this collision that you went to the notary ? 
A. I could not exactly tell. 

Q. Who went there with you ? A. Captain Donnelly and a young 
fellow; I don't know whether he is a relative of the Simpsons 

258 or not, but he is around their oflice a good deal. 

Q. A young fellow in the employ of Mr. Simpson and 
Capt. Donnelly ? A. Yes, sir. 

Q. Anybody else there? A. There was the notary and a short- 
band reporter. He wrote it in shorthand. 

Q. Who wrote that paper? A. A young man, I cannot tell his 
name; quite a youug fellow. 

Q. Did you remain there while the paper was written ? A. 
Yes, sir. 

Q. He did not take it down in shorthand and then write it down 
in longhand ? A. I could not say whether he wrote in shorthand 
first, or longhand, but I remember he asked the captain whether he 
wanted it short or longhand. 

Q. Was anybod}' else with you ? A No. sir. 

Q. At whose request did you go there ? A. At the request of 
Captain Donnelly and this other man. 

Q. This other man in the employ of Simpson? A. Whether 
he IS in the employ or not I don't know, but he is frequently with 
Captain Donnelly 

Q. You spoke of going to Oregon on the Queen of the Pacific as 
a passenger, after the collision. How much did you pay to go up ? 
A. $10. 



110 PACIFIC COAST STI^AMSHIP COMPANY VS. 

Q. Did you go np there for tlie purpose of going into this 

259 fisliing business? A. Yes, sir. 

Q. When did you arrive here ? A. I arrived here this 
morning. 

Q. By what steamer? A. Queen of ilie Pacific. 

Q. When does she return, do you know? A. I do not know her 
sailing day. 

Q. Do you know whether this barkentine Portland had a torch- 
light on board, what they call a torch? A. I believe I heard them 
say she had a torch, but I do not remember of ever having seen one 
or seen it used. 

Q. Did she use a torch that night at all ? A. She did not, sir. 

He-cross Examination. 

By Mr. McGraw — When you went to Astoria, did you go into the 
business yourself , fishing? A. Yes, sir. 

Q. Did you have boats and a net? A. I rented a boat and bought 
a net. 

Q. How much money did yon have when you went to Astoria? 
A. I had I guess, $12 or $14. I do not know exactly how much it 
was. 

Q. And you went into the fishing business with that capital ? A. 
No; not on that capital at all. Y"ou don't go into the fishing busi- 
ness generally with a capital, in Astoria. You generally buy 

260 a net, and make a contract with a man to take it in salmon. 

Q. What does that net cost you ? A. The net cost me $80, 
net and boat for the season. 

Q. Did you buy your net before you started in fishing? A. Made 
a contract with the man to take it in salmon; pay for it in salmon as 
I got it. 

Q. What is this contract that you have up there now? A. This 
contract that I have now, I have made a promise to a man, that I 
should net a net for him 500 fathom of web. 

Q. And he is to pay how much ? A. Twenty-two cents a fathom. 

Q. Have you that in writing? A. No, sir. 

Q. How many written contracts have you entered into on this 
coast besides shipping articles? A. I do not remember of having 
entered into any. 

Q. And this one that you have made with the company is the first 
written contract? A, Contract of my own business. I made a con- 
tract with A. Booth & Co., in Astoria. That is the only contract 1 
believe that I entered into with anybody on this coast. 

Q. Did you have a written contract with A. Booth? A. Yes, sir; 
the fact is, I bought a net from him, and was to pay for it in 
salmon. 

Q. You were to pay for it in salmon? A. Y'^es, sir. 

Q. He wanted that contract in writing? A. No; that con- 

261 tract was mutually agreed between him and me. 

Q. He let you have the net and you were to pay for it in 
salmon ? A. Yes, sir. 

Q. Previous to the night of the collision, when did you see the 



AMEIilCAX EAliKEKTlNE POBTLAKD. Ill 

lights tnken down and triiumed because tbey were smoky? A. I 
don't remember of their being taken down at all that night. 

Q. Or the night before? A. Not that I am aware of. They 
might be and I not know it. 

Q. "Were they taken down on that down passage ? A. Yes, sir; I 
have taken them down and trimmed them. 

Q. On that down trip? A. Yes, sir. 

Q. What day was it? A. I do not remember the day. People 
don't generally remember the day they trim a lamp. 

Q. How many times have you taken them down ? A. To the best 
of my memory, once or twice a night. 

Q. Every night you have been on watch ? A. Not every night I 
have been on watch. 

Q. How often have you taken them down, or seen them taken 
down on that trip? A. 1 have seen them taken down frequently on 
that trip; but whether it is one or a dozen times, I could not say; tor 
it did not interest me that much; but I remember I have taken "them 
down and trimmed them. 

Q. On the trip down? A. Y'es.sir. 

Q. Y^ou cannot say how often? A. No, sir. 

Q. Did you take them down more than once ? A. I could not 
swear to that. 

Q. What other men have you seen taking them down on that trip? 
A. I have seen that man, Bob Bressen, take them down, but as 
to others I could not swear or remember. When a man is walking 
on the deck the mate will sing out: "Go and trim that light," and 
a man will go and trim it. There is no notice taken of such a 
thing. 

Q. Where were the lights taken; down below in the cabin to be 
trimmed ? A. Taken down in the forecastle. 

Q. Where was the oil kept? A. I could not tell you where it was 
kept. I believe it w-as kept aft; the steward generally kept it. 

Q. Did you have to take it aft to trim it? A. Not that lam 
aware of. 

Q. How did you trim the lights; what did you do ? A. Just 
prick them up, and if the glass is smoky, wipe it off. 

Q. Did you not cut the wicks ? No, I do not remember of ever 
cutting the wicks. 

Q. Is that the common way to trim lights on board 
263 vessels of this class? A. They are not very particular, not 
a seaman, when he is told to trim a light, whether he cuts 
the wick or not. 

Q. How long would it take you to trim the light ? It depends 
what kind of a light it is. 

Q. Oue of those lights on the Portland? A. It would not 
take me very long. 

Q. On those occasions when you trimmed the lights on the 
Portland, how long would you have the lights down? A. I 
should judge for the space of four or five minutes, may be; more 
or less. 

Q. Were you on the mate's watch on the up trip? A. Y'es, sir. 

Q. On the down trip also? A. Yes, sir. 



112 PACIFIC COAST STEAMSHIP COMPANY VS. I 

Q. Then Bob Bressen is the only mau that you recollect of that 
you saw take the lights down ami trim them? A. There were 
lights taken dowu and trimmed. Who took them down — whether 
they were taken down by any one in our watch, I don't know, for I 
did not take any notice of it. 

Q. But you recollect that you did see Bob Bressen do it? A. 
Yes, sir. 

264 At a stated term of the District Court of the United States 

of America, for the Northern District of California, held at 
the court room, in the City of San Fraucisco,»on Friday, the 23d 
day of August, in the year of our Lord one thousand eight hundred 
and eighty-nine. 

Present, the Honorable Ogden Hoffman, Judge. 

A. M. Simpson et al. "| 

vs. - No. 3966. 

The Ste.-vmsh[p " State of California," her tackle, etc. ' 

AND 

The Pacific Coast Steamship Co. ) 

vs. - No. 4206. 

The Barkentine "Portland," etc. j 

These causes as consolidated for the purposes of trial, this day 
came on regularly for argument, E. W. McGraw, Esqr., and Chas. 
Page, Esqr., being present as proctors for the claimants of the bar- 
kentine Portland, etc., and for A. M. Simpson et. al. and George B. 
Merrill. Esqr., appearing on behalf of the claimants of the steam- 
ship State of California and the Pacific Coast Steamship Company. 
The causes were thereupon argued by Mr. McGraw and by Mr. 
Merrill and submitted to the court for consideration and decis- 
ion. 



4028. 



266 In the United States District Court, in and for the Northern 
Distrfct of California. 

A. M. Simpson et al., Libellants, 

m a "'^' .a n „ , V No. 3966. 

The Steamship ' 'State op California, etc. 

(Pacific Coast Steamship Co.), Claimant. 

Pacific Coast Steamship Co., Libellant, ) 

vs. r No. 

The Barkemtine "Portl\nd," etc., Kespondent. j 
(Both cases consolidated.) 

Opinion 
Kendered November 27th, 1889, by Ogden Hoffman, District Judge. 

On the morning of April 7th, 1886, a little after 4 o'clock A. Ji. , a 
collision occurred between the steamship State of California and 
the barkentine Portland, a short distance from the entrance to this 
port. 

The night was dark but clear. The Point Bonita, Point Reyes 
and Fort Point lights were plainly visible. 



AMERICAN BARKKNTINE PORTLAND. 113 

Eiicb vessel was perfectly apprised of her position. Tliey were 
boiiud in. The steamer was pursuing her direct and usual course 

toward the entrance of the harbor. 
2G7 The barkentiue had, some hours before the accident, tacked 

and was standing off on a course to the westward of north 
probably waiting for daylight before entering the harbor. The 
wind was northeast, or perhaps, a little to the northward of that 
point. Her course was about north by west. She was therefore 
close hauled on her starboard tack. 

The course of the steamer was a little to the northward of east 
by north. 

The vessels were thus approaching each other on courses which 
were not far from at right angles to one another. The steamer was 
struck by the barkentine on the starboard side abaft the beam, 
while endeavoring to cross the bows of the latter. 

It is obvious that, if the lights required by law had been dis- 
played by the vessels and if they had been navigated with ordinary 
skill and care, no collision could have taken place. One or both of 
the vessels must, therefore, have been in fault. 

The proofs are very voluminous. I have examined and consid- 
ered them with the more care, as the United States Local Inspectors 
and the Supervising Inspector appear to have differed in opinion 
as to the vessel to which responsibility for the accident should at- 
tach. I think the solution of this question will depend upon the 
answer to be given to a single inquiry: Did the barkentine display 
her red light in such a condition as to brightness, and at such a 
time before the collision as would have enabled the steamer 
268 with proper diligence to iiave avoided the accident? 

As to the steamer's lights, there is no dispute. These were 
of more than ordinary size and brilliancy. Her white headlight 
■was seen and recognized by the barkentine at least fifteen minutes 
before the collision and when she was several miles distant. A few 
minutes afterwards, her green light was observed and subsequently, 
and just before the collision her red, and even her saloon lights, 
became visible. The witnesses on the part of the barkentine unani- 
mously declare that the lights on board of her were burning brightly. 
But of these, three men were below up to the moment of the col- 
lision. They were roused by the shouting of the men on deck, when 
the steamer was close upon them. 

If the barkentine's lights were properly constructed and set, and 
were burning brightly, the steamer must have been guilty of gross 
and inexcusable negligence in failing to see the red light, and to 
alter her course accordingly. 

If, on the other hand, the barkentine's red light did not become 
visible until too late to avoid the collision, the steamer is blameless. 

The night was sufficiently clear to permit the harbor lights to be 
distinctly seen and even the steamer's headlight at a distance of 
three or four miles. 

If the barkentine's red light was not seen by the steamer in time 
to avoid the collision, it must have been because it was not set or 
was dim, or else because the steamer failed to exercise proper dili- 
gence. 



114 PACIFIC COAST STEAMSHIP COMPANY VS. 

The testimony beiog irreconcilably conflictiug, we are 

269 driven to attempt to arrive at the truth by an estimate of 
probabilities. It is the well known and, I believe, invari- 
able practice of the commanders of the large passenger steamers 
on this coast, to station themselves on the bridges of these vessels, 
when entering the harbor, and to remain there until extraordinary 
diligence becomes unnecessary. 

Ca))1ain Debney, the master of the State of California, a skillful 
and experienced officer, was accordingly on the bridge from the 
time Point Bonita light was made until the moment of collision. 
The second mate, the officer of the deck, was with him and a look- 
out was duly stationed forward. That they were vigilant may be 
inferred from the fact that a sail on the starboard bow Avas discovered 
and reported. Bat no light could be detected. Captain Debney, 
therefore, concluded that the vessel was bound in on a course not 
far from parallel to his own. He, therefore, kept on his course. It 
was not, he says, until a minute before the collision and when too 
late to avoid it that he saw a dim red light, which apprised him that 
the vessels were steering on converging courses. 

On board of the barkentine, the only persons on deck were the 
mate (Peterson) and three men, two of them Russian Finns and a 
third named Mullane. 

It may seem alittle singular and inconsistent with thehabitual heed- 
lessness of seaman before the mast, that they were all careful to ob- 
serve, are now able to testify that the lights were burning 

270 brightly. 

But if, as they say, they directed their attention to their 
own lights after the steamer's headlight was observed, their doing 
so was, perhaps, not unnatural. But it is more singular that all 
those who were below and rushed on deck at the very moment of the 
collision and when the vessel had been so injured that she would 
have sunk had she not been lumber laden, also directed their atten- 
tion to the lights and are prepared to swear positively that they were 
burning brightly. 

There are some points in the mate's deposition which deserve 
attention. 

He states that he observed that the red light was burning dimly. 
He, therefore, took it down, and into the cabin and pantry, where 
he trimmed the wick, wiped off the glass and replaced the light. 

It is remarkable that no one of the crew observed this important 
incident; or, if they did, they have not mentioned it. 

Peterson testifies that it occurred more than an hour before the 
collision. 

But he seems to have made a statement or declaration, which was 
reduced to writing at Hull, England, to the elfect that the collision 
occurred " at 3:35 by our o'clock;" and that he took the light down 
" after 3 :00 o'clock. '' 

He adds, in the same statement, that he took down the light after 
the steamer's green light appeared. In his deposition, taken 

271 in this suit, he testifies that his declaration at Hull was in- 
correct or incorrectly taken down; and, that, in fact, he 



AMERICAN BARKHNTIXE PORTLAND. 115 

trimmed and replaced the light long before the steamer's lights were 
discovered. 

Which of these statements is true, it is impossible to determine 
with certaiuty. 

If it be true that he took the light dowa after the steamer's green 
light became visible, and he was occupied in trimming, wiping it off 
and resetting it some eight or ten minutes, as seems not unlikely, the 
failure of tbe steamer to observe it during the brief, but critical, in- 
terval in which she could have altered her course or stopped and 
backed, is explained. 

The omission of the other witnesses to make any mention of this 
fact is significant, if not suspicious. 

One other circumstance, tbough of no great importance, deserves 
mention, as it seems to indicate carelessness or laxity of discipline 
on the part of the barkentiue. 

From the moment the steamer's headlight was discovered, it must 
have been apparent to the mate of the barkentine that the steamer 
was bound in and that the two vessels were on converging courses 
which might bring them together. And yet the master of the bark- 
entiue was suffered to sleep undisturbed in his cabin, and was only 
aroused by the shouting of the men when the collision was immi- 
nent and inevitable. 

The lights of the barkentine are stated to have been the cus- 
tomary regulation lights. But neither they, nor similar ones, are 
produced in Court to establish beyond controversy their 
272 sufhciency. 

The foregoing is, I believe, a correct summary of the tes- 
timony bearing on the controverted point on which the decision of 
the cause must turn. Its solution depends, as before observed, 
upon an estimate of probabilities. 

Which is the more likely? 

That the red light was taken down by Peterson to be trimmed 
after the green light of the steamer came in view, as ho is said to 
have stated in his declaration at Hull; or, that for some other reason 
the light was burning dimly; or, on the other hand, that it was burning 
brightly and that the master and mate of the steamer, and especiallly 
the former, after being apprised of the proximity of a sailing vessel, 
were so negligent as to fail to discern the plainly visible red light of 
an approaching vessel, which it was the principal business of the 
master, when he took his station on the bridge, to look out for and 
detect at the earliest moment. 

It may be that the captain and mate were so impressed with the 
idea that the course of the vessel, whose sail they had discovered, 
was parallel to their own, that they paid no further attention to her. 
But they were accurately apprised of their position. The harbor 
lights were all visible, and there was nothing to divert their atten- 
tion from the only object from which danger could be apprehended. 

If, on this occasion, the master failed to closely watch for the 
lights of the barkentine, he was guilty of gross, and, 1 must think, 
most improbable negligence. 

After mature consideration, I have reached the conclusion 



116 PACIFIC COAST STEAMSHIP COMPANY VS. 

273 that the steamer failed to see the rod light of the barkentine, 
because it was either not displayed or was burning dimly. 

One or two minor points remain to be noticed. 

It was suggested that the steamer should have moderated her 
speed, when the sail of the barkentine was described. 

But, the red light of the latter was not then visible and the 
steamer wa=5 justified in supposing that the vessels were sailing on 
neai'ly parallel courses and were not approaching each other. It is 
only in the latter case that the regulations required her to moderate 
her speed. 

It is further claimed that, when the steamer did discover the red 
light of the barkentine, she should have stopped and backed or al- 
tered her course so as to avert the collision. But the red light was 
not visible until, as Captain Debney swears, about a minute before 
the accident. 

If I am right in supposing that the red light was not previously 
visible throught the fault of the barkentine, the captain of the 
steamer was, by that fault, placed iv extremis and is not responsible, 
if he failed to adopt measures, which might possibly have iirevented 
the accident. His judgment, at the time, was that his only hope of 
avoiding the collision lay in holding his course and endeavoring to 
cross the bows of the barkentine. Iq this he very nearly succeeded. 
The barkentine struck him abaft his beam. Had the steamer gone 
less than a half her length further, the vessels would have gone clear 
of each other. 

It is impossible to affirm that any other course would have 

274 been more judicious or have afforded greater chances of 
escape. At all events, he exercised his best judgment in an 

emergency not due to his own fault; and this is all that the law re- 
quires. 

275 At a stated term of the District Court of the United States 
of America for the Northern District of California, held at 

the court room, in the City of San Francisco, on Tuesday, the 3d 
day of December, in the year of our Lord one thousand eight hun- 
dred and eighty-nine. 

Present: The Honorable Ogden Hoffman, Judge. 

(Title of Cause.) 
This cause having been heretofore submitted to the Court for con- 
sideration and decision, now after due consideration had thereon, it 
is by the Court ordered that the libellant do have and recover their 
damages herein , in the libel alleged. And it is further ordered that 
this cause be and the same is hereby referred to Southard Hoffman, 
Esq., as commissioner to take proofs as to the amount of damages, 
and to report the same, to the Court with all convenient speed. 

276 (Title of Cause.) 

The above-entitled cause came on regularly to be heard 
before the Court, on the pleadings, proofs and arguments of coun- 
sel therein, and the Court having maturely considered all and sing- 
ular the law and facts in the premises does here now order, adjudge 



I 



AMERICAN BAIiKEXTlNE PORTLAND. 117 

and decree that said libellant, the Pacific Coast Steamship Company, 
do have and recover their damages herein in their libel alleged, and it 
is further ordered that this cause be and the same is hereby referred 
to Southard Hoffman, a Commissioner, to take the testimony of the 
amount of such damages, and to report the same to this Court with 
all convenient speed. 

OGDEN HOFFMAN, Dist. Judge. 
[Endorsed:] Filed December 3rd. 1889. 

Southard Hoffman, ClerTc. 
By J. S. Manley, Deputy Clerk. 
Ent. in Bks. "Judgments and Decrees," Vol. LL, page 722. 

277 (Title of Cause.) 

Eeport of Southard Hofjman, Commissioner of the Damages and 

Demurrage. 

I, Southard Hoflfman, a Commissioner of the United States Circuit 
Court to whom was referred the above entitled cause, by order of 
Court of December ord, 18S9, to ascertain and compute the damages 
sustained by libellant herein, respectfully report that I was attended, 
at various times, by the proctors for the libellant and claimants and 
by witnesses. 

The testimony, by me taken, with Exhibits 1 to 27 inclusive, 
accompanies this report, and is part thereof. 

The claim of libellant is for the cost of repairs necessitated 

278 by the collision, and for compensation, in the nature of 
demurrage, for the loss of the service of the steamer, whilst 

such repairs were being made. 

Cost of Repairs. 

The testimony and original books of entry and the exhibits show 
the cost of repairs to have been $8S80.30. 

The largest item is for the iron work done by Moynihan & Aitken, 
and is for $6500.00. 

Bids were made for this work by the Risdon Iron Works, Wm. 
McAfee & Sons, the Union Iron Works and by Moynihan & Aitken. 
Each bidder made two estimates: one, for the performance of the 
work in a specified number of days, viz., 18 days; and one, for an 
increased compensation should the work be done in less time, viz. 
12 or 13 days. 

Messrs. Moynihan & Aitken were, by far, the lowest bidders, both 
in money and time. Contract was therefore made with them 
and, I think, should be allowed. 

Tlie remaining 21 items, making a total of §3S80.30, are mostly 
small, and I consider them to have been proved. I append a list 
of the items. 

Demurrage. 

The steamer was detained for repairs of the damages caused by 
the collision with the barkeatine Portland, for fifteen days. 

A statement has been filed, showing the gross and net 
27D earnings of the steamer State of California, for 12 months, 
from September, 1885, to and including August, 1880. 

(The collision was in April, 1886.) 



118 



PACiriC COAST STEAMSHIP COMPANY VS. 



This statement shows her average dailij net earnings to have 
been $245.40, or, for 15 days, f 3681. 00. 

I therefore respectfully report as due from chiimants to libella-nts 
for damages, sustained by reason of the collision: 

As cost of repairs, with interest from date of payment, $8880.30. 
For Demurrage, $3681.00. 

RespecfuUy submitted, 

SouTH.\TiD Hoffman, 
Comss. U. S. Cir. Ct. N. D. C. 
March 31st, 1891. 



280 



Items Allowed. 



Exhibit 



1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 
1-2. 
13. 
14. 
15. 
16. 
17. 
18. 
19. 
20. 
21. 
22. 
23. 
24. 
25. 



Freeman's survey $ 

Watson's survey 

Moynihan k Aitken 6,500 00 

Capt. Watson 40 00 

Steam tug ' ' Monarch " 40 00 

" W^ater Nymph " 5 0) 

Henry Kissane ... 2 60 

Frank H. Allen, (lumber) 5 50 

Hanson & Co 12 03 

California Paint Co 82 50 

C. M. Josselyn & Co 2 50 

Adams & Pritcharil, (repairing life boat). . 15 67 

California Mills, (lumber and materials).. 601 04 

D. Dowd, (hauling) 1 55 

Dunham, Carrigan &, Co. (sheaves) 9 30 

W. D. Garratt & Co., (brass work) 109 60 

John Lee ct Co. , (galvanizing) 7 86 

A. Mnir (bolts) 90 

W. F, Nelson &, Sons, (hardware) 48 73 

W. S. Phelps & Co., (bolts) 2 25 

William Smith, (hauling) 20 50 

Thompson Bros., (chocks) 27 50 

W^estern Foundry, (sockets) 56 45 

Whittier, Fuller <k Co 90 

Labor and materials 1,288 52 



[Endorsed:] Filed March 31, 1891. 



$8,880 30 



SouTHABD Hoffman, Clerk. 



(Here follows " Testimony taken on Keference," with Exhibits 
annexed thereto, the same being numbered consecutively from page 
281 to page 476, both inclusive.) 

477 (Title of Cause.) 

Please take notice, that on Tuesday, the 7th day of April 
instant, at the opening of the Court, I shall move that the report of 
S. Hoffman, Esq., Commissioner, to whom reference was heretofore 



AMERICAN BARKENTIXE PORTLAND. 119 

tnade herein be confirmed, and that a judgment and decree in accord- 
ance therewith be entered herein. 

T. I. BEEGIN, 
To the Claimants, and Proctor for Lihts. 

E. W. McGEAW, Esq., 

Proctor for Claimants. 
April 2d, 1891. 

[Eodorsed:] Service hereof admitted this 2d day of April, 1891. 

E. W. McGEAW, 

Proctor for Claimcotts. 
Filed April 2d, 1891. 

SouTHAiJD Hoffman, Clerk. 
By J. S. Manley, Deputy Clerk. 



478 (Title of Cause.) 

ExcErxioNS OF Eespgndent and Claimants to Eeport or Com- 
missioner AS TO Damage and Demurrage. 

Now come claimants and except to the following items of allow- 
ance reported by the commissioner and for the reasons following, 
to wit: 

They except to item No. 3, Moynihan & Aitken, 16500. 

This is a bill for iron work done on the State of California. The 
contract price was foOOO, and $1500 was paid as a premium for do- 
ing the work in a shorter time than specified in the contract. We 
except to the allowance of the $1500 premium paid as an improper 
charge against the Portland. (See testimony, pp. 17-20, and Ex- 
hibit No. 3.) 

They except to the item of $3681 for demurrage. 

It appears that this item is made up by taking the average 

479 net earnings throughout the year while the collision occurred 
in April during the dull season. 

It appears that the average daily earnings in March were $212.35, 
in April $30.05 and in May $197.79, making an average during those 
three mouths of $146.73, making a total of $2200.95, which respon- 
dents claim to be the correct amount instead of the amount found 
by the commissioner. (Testimony, p. 325, & Ex. 27.) 

E. W. McGEAW, and 
CHAS. PAGE, 

Proctors for Respdt. 

[Endorsed:] Filed June 25th, 1891. 

Southard Hoffman, Clerk. 
By J. S. Manley, Deputy Clerk. 



480 At a stated term of the District Court of the United States 

of America, for the Northern District of California, held at 
the court room, in the City of San Francisco, on Wednesday, the 
16th day of July, in the year of our Lord one thousand eight hun- 
dred and ninety-one. 

Present: The Honorable E. M. Eoss, District Judge for the 
Southern District of California, presiding. 



120 PACIFIC COAST STEAMSHIP COMPANY VS. 

(Title of Cause.) 
This cause this day came on for hearing upon the exceptions by 
the claimants to the report aiirl of the commissioner. And said ex- 
ceptions were duly argued by E. W. McGraw, Esq., proctor for the 
claimants, in support thereof, and by Geo. B. Merrill, Esq., proctor 
for the libellants, in opposition thereto, and submitted to the Court 
for cooisideration and decision. 

481 At a stated term of the District Court of the United States 
of America, for the Northern District of California, held at the 

courtroom, in the city of San Francisco, on Monday, the 20th day 
of July, in tJie year of our Lord one thousand eight hundred and 
ninety one. 
Present: 

The Honorable E. M. ROSS, District Judge for the 

Southern District of Culiforuia. 
(Title of Cause.) 
In this cause the exceptions by the claimants to the report of the 
Commissioner having been heretofore argued and submitted to the 
Court for consideration and decision, now after due consideration 
had thereon, it is by the Court ordered that the second exception 
to the report of the Commissioner be and the same is hereby sus- 
tained, and further ordered that tlie report of the Commissioner be 
and the same is hereby in all other respects confirmed. And it is fur- 
ther ordered that the item of demurrage in said report of Commis- 
sioner, amounting to the sum of 13681.00 beingthe average daily net 
earnings of the steamship State of California, of $245.40 for 

482 the period of fifteen days be and the same is hereby reduced 
to and fixed in the sum of |307().05. being the average daily 

net earnings of said steamship of $205,07 for the period of fifteen days. 
And it is further ordered that decree in favor of the libellant for 
the sum of $1 1,870.65 and interest and costs be duly drawuand en- 
tered. 

483 At a stated term of the District Court of the United States 
of America, for the Northern District of California, held at the 

courtroom, in the City of San Francisco, on Thursday, the 23d day 
of July, in the year of our Lord one thousand eight hundred and 
ninety-one. 

' The Honorable E. M. BOSS, District Judge, for the 
Southern District of California. 
(Title of Cause.) 
In this cause, on motion of George B. Merrill, Esqr., proctor for 
the libelant, a decree in favor of the libelant for $ll,876.ti5 and in- 
terest and costs was this day duly signed and entered. 

484 (Title of Cause.) 

Decree. 
This cause having been heretofore referred to Southard Hoffman, 
Esq. , United States Commissioner to make report upon the damages 



AMEHICAN BARKENTINE PORTLAND. 121 

berein, and tlie said referee having heretofore filed his report and 
the claimants having filed exceptions thereto, and the parties having 
been heard u])Ou the motion of libellant to confirm said report and 
upon the said exceptions and due deliberation had, and the report 
of said referee having been heretofore confirmed save and except as 
to the amount therein allowed for demurrage, and as to that the 
libellant having been allowed as demurrage the sum of two hundred 
and five and 7-100 dollars ($205.07) per day for fifteen days instead 
of two hundred and forty-five and 40-100 dollars per day as found 
by said referee. 

It is ordered, adjudged and decreed that the libellant recover 

from the claimants herein the sum of eleven thousand eight hundred 

and seventy-six and 5-100 dollars ($11,876.05) and three 

485 thousand two hundred and nineand 30-100 dollars ($3209.30) 

interest upon eight thousand eight hundred dollars as per 

said report; in all the sum of fifteen thousand one hundred and 

sixty-five and 65-100 dollars ($15,165.65) and costs to bo taxed. 

Dated San Francisco, July 23d, 1891. 

EOSS, 
District Jurlqe. 
[Endorsed:] Filed July 23d, 1891. 

Southard Hoffman, Clerh. 
Entered in Bks. '' Judgments k Decrees," Vol. Ill, page 36. 



486 (Title of Cause.) 

1886. 

Sept. 14. Monition $ 2.00 

Sept. 15. Svg. Order 2.00 

Poundage on $15,085.90 77.93 

$81.93 
Cr. 
Sept. 16. By cash $ 4.00 

.$77.93 
Taxed at $77.93. 

Southard Hoffman, Clerli. 

[Endorsed:] Filed July 27th, 1891. 

Southard Hoffm.an, Clerk. 



487 (Title of, Cause.); 

Clerk's Costs. 

1S8(). 

Sept. 13— Filed Libel, .20; filed Stipulation for Costs, .20 40 

Issued Monition, $2.40, and copy $2.00 $4 40 

Issued Notice of Publication 90 

14— Filed Claim, .20; filed Stipulation for Costa .20 40 

Filed Bond to U. S. Marshal .20; issued notice of bonding .70 90 

28 — Filed Monition on return, .20; filed return, .20; entered return, ..SO 70 

Order Proclamation, ..SO; Engr. Order, .00; filed Order, .20... 1 10 

Order claimants ten days to Answer, ..SO; Engr. order, .60; filed 

Order, .20 1 10 

Dec. 9— Filed Answer 20 



122 PACIFIC COAST STEAMSHIP COMPANY VS. 

1887. 

July 28 — Onlei- cause consolidated with No. 3,966 30 

Engr. Order, .60; Filed Order, 20 80 

1889. 

Nov. 27 — Filed Opinion 20 

Dec. 3— Order Libellant recover damages, .30; Engr. order, .60; Filed Or- 
der, .20 1 10 

Order Cause referred to Southard Hoffman, Comm'nr. etc 30 

Engr. Order, .60; Filed Order, 20; Filed Interlocutory Decree, .20. . 1 00 

Entered same, .60 60 

1891. 

Alar. 31 — Filed report of Commissioner, .20; Filed testimony, .20 40 

Apr. 2— Filed notice of motion to confirm Report 20 

7— Order hearing on Motion to Contirm contd., .30; Engr. Order, .60; 

Filed Order, .20 1 10 

29— Order hearing on Motion to Confirm contd., .30; Engr. Order, .60; 

Filed Order, .20 1 10 

May 5 — Order hearing on Motion to Confirm contd., .30; Engr. Order, .60; 

Filed Order, .20 .' 1 10 

.Tune 22 — Onler hearing on Motion to Confirm contd., .30; Engr. Order, .60; 

Filed Order, .20 110 

25— Filed Exceptions to Report 20 

26 — Order hearing on Exceptions contd., 30; Engr. Order, .60; Filed 

Order, .20 1 10 

.July 14— Order hearing on Exceptions contd., .30; Engr. Order, .60; Filed 

Order, .20 110 

15— Order hearing Exceptions, .30; Engr. Order, .60; Filed Order, .20.. 1 10 
20— Order second Exception sustained, etc., .30; Engr. Order, .60; Filed 

Order, .20 1 10 

Order item of Demurrer reduced, etc., .30; Engr. Order, .60; Filed 

Order, .20 1 10 

23 —Order decree in favor of Libellant, .30; Engr. Order, .60; Filed 

Order. 20 1 10 

Filed Decree, .20; Entered same, .90 1 10 

27^Filed Marshal's Bill of Costs, .20; Filed Clerk's Bill of Costs, .20. . . 40 

Filed Commrs. Bill of Costs, 20 20 

•28— Filed Proctor's Bill of Cots, 20 . 20 

Made and filed Judgment record 1 70 

Dockets and Indices 6 00 

§35 80 

Clerk's costs taxed at $35 80. 

SouTHAFD Hoffman, Clerk. 



480 (Title of Cause.) 

Ccmmissigneb's Costs. 

1886. 

Sept. 13- Oath to Libel . . 50 

Libellant's Stipulation for Costs $3 00 

14— Oath to Claim 60 

Claimant's Stipulation for Costs 3 00 

Bond to U. S. Marshal 3 00 

Dec. 9 — Oath to Answer 50 

§10 50 

Commissioner's Costs taxed at $10 50. 

SouTHAED Hoffman, Cle7-k. 



[Endorsed:] Filed June 27tb, 1891. 

SouTHAED Hoffman, Clerk. 



490 



AMERICAN BARKENTIXE PORTLAND. 123 

(Title of Cause.) 
Proctor's Bill of Costs. 

Marshal's fee for serviuf^; process I 4 00 

Deposition of Andrew Parko 2 50 

" John H. Brown 2 50 

" Joseph P. Bennett 2 50 

" James Daly 2 50 

" Abraham Isaacs 2 50 

" James Donnelly 2 50 

" Edward Peterson 2 50 

" Robert Bressen 2 50 

Depositions taken before Commissioner Hoti'mau 97 50 

Marshal's fees for poundage 77 92 

Proctor's fee 20 00 

$219 42 
Proctor's costs taxed at $137 50, $77 92 disallowed as having 
been taxed in U. S. Marshal's costs bill. 

Southard Hoffman, Clerk. 
491 

Northern District of California. 
Citj' and County of San Francisco — ss. 

T. I. Bergin being duly sworn says on oath that he is proctor for 
libellant in the above entitled cause; that the services charged for 
in the foregoing bill of costs have been actually and necessarily 
rendered as therein stated; that the expenses therein mentioned 
have been actuallv and necessarily incurred as therein set forth. 

T. I. Beegin. 
Subscribed and sworn to before me this 27th day of July, 1891. 

John Fouga. 
[Endorsed:] Filed July 27th, 1891. 

Southard Hoffman, Clerh. 



492 At a stated term of the District Court of the United States 

of America, for the Northern District of California, held at 
the courtroom, in the city of San Francisco, on Monday, the 27th 
day of July, in the year of our Lord one thousand eight hundred 
and ninety-one. 
Present: 

The Honorable Ogden Hoffman, District Judye, for the 

Soxtthern District of California. 

(Title of Cause.) 

In this cause, on motion of E. W. McGraw, Esqr., proctor for 
the claimants, and who suggested to the Court the death of Robert 
W.Simpson, one of the claimants herein, it is by the Court now 
here ordered that A. M. Simpson and George P. Simpson, executors 
of Robert W. Simpson, deceased, be and they are hereby substi- 
tuted as claimants of the barkentine Portland, etc., in the place and 
stead of Robert W. Simpson. 



124 PACIKir COAST STEAMSHIP COMPANY VS. 

493 (Title of Cause.) 

To said libellaut and T. I. Bertjiri, Esq., his proctor: 
Take notice that A. M. Simpson, Samuel Perliins, A. Y. Trask, 
John Kruse and A. "W. Simpson and George P. Simpson, executors 
of the last will of Robert W. Simpson, claimants of the barkentioe 
Porthiud, intend to appeal and do hereby appeal from the final 
decree of the District Court in this cause to the Circuit Court of 
Appeals of the United States for the Ninth Circuit. 

E. \V. McGllAW. 
CHAS. PAGE. 

Provtors for Claimants. 
Dated August 1st, 1891. 
fEndorsed :J 
U. S. Marshals Return. 

I liereby certify that I received the within notice of Appeal 

494 on the 8rd day of August, 1881, and personally served the 
same on the 3rd da}' of August, 1891, on T. I. Beri:in, Esq., 

Proctor for libellaut, by delivering to and leaving a copy thereof 
with tha cleik, or the young man in charge of the office of said T. 
I. Bergiu, at the City uud County of San Francisco, in said Dis- 
trict. 

V. S. Marshal 
Bv Jonx T. Gkl.y, Deputy. 
August 3rd, 1891. 
Filed August 3rd, 1891. 

SouTHArD Hoffman, Cleric. 
By J. S. Manley, Deputy Cleric. 

495 (Title of Cause.) 
Clerk's Acckuing Costs. 

1S91. 
July 27 — Order A. M. Simpson and Geo. P. Simpson, Executors of, be sub- 
stituted, etc., .30; Eogr. Order, .00; Filed Order, .'20 $110 

Aug. 3— Fik'd Notic ! of Aj'peal 20 

8— Filed Stipul.ntion that Origl. E.\liil>its be made part of Apostles ... 20 
Filed Stipulation tliat Cluimant's bond on appeal may be given in 

the sum of 820,000, etc 20 

Filed Bond on Appeal 20 

Issued Certiticato that Appeal has been perfected 1 00 

Filed Receipt of Clerk of Circuit Court of Appeals for Apostles. ... 20 

Apostles oa Appeal 298 90 

.?302 00 

Accruing Bill of Costs taxed at .*302 00. 

SouTH.\RD Hoffman, Clerk. 
[Endorsed:] Filed August 10th, 1891. 

Southard Hoffman, Clerk. 

496 

United States of America, ) 

Northern District of California. S ^^' 

I, Southard Hoffman. Clerk of the District Court of the United 
States, in and for the Northern District of California, do hereby 
certify that the foregoing and hereunto annexed four hundred and 



AMERICAN BARKENTISE PORTLAND. 125 

uinetj-five (-495) pages, numbered from oue (1) to four hundred and 
ninety- five (495) respectively, contain a full, true and correct trans- 
cript of the record in said District Court, iu the cause entitled 
"The Pacific Coast Steamship Company, Libellant, vs. The bark- 
entine Portland, her tackle, apparel and furniture, etc., A. M. 
Simpson, et al. , Claimants," made up pursuant to Rule 52 of the Rules 
of the Supreme Court of the United States. 

Witness my hand and the seal of said Court, at San Fran- 
[SEAL.] Cisco, this Idth day of August, 1S91. 

SouTHABD Hoffman, Clerk. 

497 (Title of Cause. ) 

Stipulated: Thar the bond of claimants of barkentine Portland on 
appeal to U. S. Circuit Court of Appeals, may be given iu the sum 
of S20,000, with J.S. Doe and Charles Nelson as sureties, and justi- 
fication of sureties is waived. 



San Francisco, Aug. 8th, 1891. 
[Endorsed:] Filed Aug. 8th, 1891. 



T. I. BERGIN, 

Prodor for Lihdlant. 



SouTHAED Hoffman, Clerk. 



498 (Title of Cause.) 

Know all men by these presents that I, Samuel Perkins, on 
my own behalf as well as on behalf of A. M. Simpson. A. Y. Trask, 
John Kruse and A. W. Simpson and George P. Simpson, as princi- 
pal, and we, J. S. Doe and Charles Nelson, of San Francisco, as 
sureties, are held and firmly bound to the Pacific Coast Steamship 
Compauy in the sum of twenty thousand dollars, to be paid to the 
said Pacific Coast Steamship Company, its successors and assigns; to 
which jiayment well and truly to be made, we bind ourselves, our 
heirs, executors and administrators jointly and severally firmly by 
by these presents. 

Dated this day of August, a d. 1891. 

Whereas, the above named Samuel Perkins, A. M. Simpson. A. 

Y. Trask. John Kruse and A. W. Simpson, and George P. Simpson, 

claimants and owners of the American barkentine Portland, have 

appealed to the Circuit Court of Appeals of the United States 

499 Ninth Circuit, to reverse the decree rendered in the above 
suit by the District Court of the United States, for the 

Northern District of California; 

Now, therefore, the condition of this obligation is such that if the 
above named appellants shall prosecute their appeal to efi!"ect, and 
answer all damages and costs if they fail to make their appeal good, 
then this obligation shall be void, otherwise the same shall be and 
remain in full force and virtue. 

Sam'l Peekins, (Scroll seal.) 
J. S. Doe. (Scroll seal.) 

Chaeles Nelson, (Scroll seal.) 
[Endorsed:] Filed August Sth, 1891. 

SouTHABD Hoffman, Clerk. 



126 PACIFIC COAST STEAMSHIP COMPANY VS. AMERICAN BARKENTI\E PORTLAND. 

490 I, Southard Hoffman, Clerk of the District Court of the 

United States for the Northern District of California, do hereby 
certify the foregoing to be a full, true, and correct copy of the stipu- 
lation fixing the amount of bond on appeal, etc., and of the bond on 
appeal in the case entitled Pacific Coast Steamship Company vs. 
American barkentine Portland, etc., No. 4,026 in the United States 
District Court, Northern District of California, and now remaining 
on file and of record in my office. 

Attest my hand and seal of said District Court this 2d day of Sep- 
tember, A. D. 1»91 

[seal.] Southard Hoffman, Clerk, 

By J. S. Manley, Deputy Clerk. 



491 In the United States Circuit Court of Appeals, Ninth 

Circuit. 
Pacific Coast Steamship Company, ] 
Llbellant and Appellee. \ 
vs. [' 

Barkentine Portland, | 

Respondeat and Appellant. J 
Stipulated that in printing the record on appeal in above case 
respondent and appellant may omit all testimony taken on the order 
of reference to ascertain the amount of damages of libellant, no 
question being made on amount of damages except as to interest. 

T. I. BERGIN, 

Proctor for Appellee. 
E. W. McGRAW, 
CHAS. PAGE. 

Proctors for Appellants. 



«^n^icrinal 



BRIEF OF APPELLANT. 



UNITED STATES CIRCUIT COURT OF APPEALS 

NINTH CIRCUIT 

No. 1. 
JA-NUAPtY TERM, 1893. 



AMERICAN BARKENTINE PORTLAND, 

Eesponden! and ApppUaai, 
VS. 

PACIFIC COAST STEAMSHIP COMPANY, 

Libellant and Appellee. 



E. W. McGRAW, 
CHARLES PAGE, 

For Appellant. 



"/^^ 6i7i .^yrc, ^57,//^^/ 



AMERICAN BARKENTINE PORTLAND VS. PACIFIC COAST STEAMSHIP COMPANY, 

In the United States Circuit Court of Appeals, Ninth Circuit. 

American Babkentine Portland, Kespondent and Appellant,) 

vs. V 

Pacific Coast Steamship Company, Libellant and Appellee, j 



BKIEF OF APPELLANT. 

STATEMENT OF FACTS. 

(The references herein are to pages of original transcript, i. e. to 
side paging of printed record. ) 

The barkeutine Portlaiul, James Donelly, master, sailed from 
the Columbia Eiver bound for San Francisco, on March 28, 1886, 
carrying a full load of lumber in the hold and on deck. (Testimony 
Donelly, Trans., pp. 121, 131, 132.) 

At two o'clock in the morning of April 7th, she was off the Heads. 
The first officer, Edward Peterson, was in command of the deck with 
his watch, consisting of four seamen. The captain, second officer, 
four seamen and steward were below. (Testimony of Peterson, pp. 
14(5, 147, 158, 159; Bressen, p. 33; Donelly, p. 121; Isaacs, p. 109; 
MuUane, pp. 232-248.) 

At that hour, two o'clock, the vessel being on the port tack steer- 
ing southeasterly, Point Bonita bearing north , the first officer, in 
accordance with orders of the master, tacked ship and stood close 
on the wind to the northward and westward on a starboard tack. 
(Peterson, p. 146; Bressen, p. 93-4; Donelly, p. 126.) 

She stood in that course up to the moment of the collision. Parks, 
the man at the wheel, the one best qualified to speak on that sub- 
ject, gives the course of thebarkentine as N. W. by W. (Testimony 
of Parks, p. 221.) Captain Debney, of the steamer, gives the 
course of the barkeutine as N. W. by N. (Transcript, p. 65.) Tide 
was ebb. (Debney, p. 77.) Wind was northerly. (Bressen, p. 34.) 
N. E. by N. (Peterson, p. 147.) Northward and eastward. (Don- 
elly, p. 126.) North by east. (Isaacs, p. 109; Debney, p. 65.) 

Some time before four o'clock in the morning, the watch on the 
barkeutine sighted the white mast head light of the steamer State 
of California. Peterson, the mate, says white light was seen about 
fifteen minutes before the collision. (P. 160.) Isaacs, one of the 
watch, says ten or fifteen minutes. (P. 109.) Bressen says half an 
hour. (P. 35.) Parks says steamer was a good distance away. (P. 
220.) Mullane says he reported the steamer nearly an hour before 
the collision. (P. 2"1) 

Soon after the greon light of the steamer showed up. Peterson 
says in seven or eight minutes before the collision. (P. 162.) 
Bressen says ten minutes after seeing white light and fifteen or 
twenty minutes before the collision. (P. 36.) 

The steamer's lights were seen on the port side of the barkentine 
forward of the beam. (Bressen, pp. 36-40; Peterson, 168; Parks. 
93.) 

The barkentine was under nearly full sail. (Testimony Peterson, 
p. 154; Bressen, p. 35; Donelly, p. 125.) 



AMERICAN BARKENTINE PORTLAND VS. 



The wind was light. (Parks, p. 225.) Between a three and four 
knot breez«. (Peterson, p. 152; Donelly, p. 126.) The sea was 
smooth. (Donelly, p. 139.) 

From the time the steamer's lights were seen until and after the 
collision, the barkentine's lights were burnit-g brightly and in their 
proper place. (Peterson, p|). 148, 168; Isaacs, p. Ill: Bressen, pp. 
40, 42, 45; Parks. 221-224; Donelly, p. 131; Bennett, pp. 50, 189; 
Daley, pp. 206, 212.) 

After seeing the lights of the steamer, no light of the barkentine 
was taken down, nor did any of the watch leave the deck. (Bres- 
sen, pp. 42, 43, 47, 55; Peterson pp. 171, 173.) 

After seeing the lights of the steamer, the barkentine held her 
course close by the wind. (Isaacs, p. 108; Peterson, pp. 171-173; 
Bressen, pp. 40, 41, 55; Paiks,p. 221; Mullane, 234.) 

At the moment of the collision, when disaster seemed inevitable, 
the helm of the vessel was put hard up, throwing her into the wind. 
(Parks, pp. 221-224.) At time of collision, barkentine was hang- 
ing on the wind pretty close. (Donelly, p. 127.) Just before the 
collision, the top gallant sail was shaking. (Bressen, p. 41.) 

The steamer State of California, bound for San Francisco, was 
steering E. N. E. to E. by N., and going through the water at the 
rate of thirteen knots an hour. (Debney, pp. 65, 67. 73, 84.) Second 
mate Stephens says her course was E. by N. half N. (P. 93.) 
There were on deck only the man at the wheel, the officer of the 
watch and the captain on the bridge and one lookout at the bow, fifty 
feet from the bridge. (Debney, j'p. 76, 79.) 

The barkentine was seen from the steamer; the captain, Debney, 
says four or five minutes before the collision (p. 70); at a distance of 
a mile and a half or two miles. (P. 77.) Second mate Stephens 
says he saw the light or the vessel (it is a little doubtful which he 
means) at a distance of three miles. (P. 92.) The lookout, Doran, 
does not testify on that subject. The man at the wheel was not put 
on the stand. 

When the lookout first saw the vessel, he hailed the bridge, " A 
sail on the starboard bow." The captain heard the hail, but made 
no response. The lookout then left his post and ran back to the 
pilot house and repeated his hail. (Debney, pp. 75, 76; Doran, p. 
97; Stephens, p. 94.) 

After the barkentine was sighted, no orders whatever were given 
on the steamer. She continued her course at full speed and en- 
deavored to cross the bows of the barkentine. (Debney, pp. 65, 67, 
73, 79.) 

As the steamer neared the barkentine, the crew of the latter 
shouted at the top of their voices, but no notice was taken of their 
outcries. (Bressen, p. 37; Isaacs, p. 112; Peterson, p. 148; Don- 
elly, p. 125.) 

The barkentine struck the steamer with her jib-boom; the bar- 
kentine was swung around, her port bow striking the steamer, the 
jib-boom, bowsprit and bow of the barkentine were cai'ried away, 
and she immediately tilled with water, but being loaded with lum- 
ber did not sink. The steamer pursued her course and made no 
efforts to assist the barkentine. 



PACIFIC COAST STEAMSHIP COMPANY. 3 

SIZE OF VESSELS. 

Barkentine, 468 tons register. 

Steamer, 315 feet long, 2,2G0 tons gross tonnage, and 1,2G0 tons 
register. 

^VEATHER. 

A fine night; no moon, but starlight; conld see Heads lights, 
Point Reyes and Farraloues. (Bressen.) Clear enough to see the 
lights. (Peterson.) Clear. (Parks.) Very dark overhead, clear 
on horizon; occasional stars, some little mist, damp enough for 
rain. Could see Farraloues' light. North Head light, Fort Point 
light. (Debney.) 

Dark, cloudy, overcast; had been misty with light shower just 
previous to four o'clock. 

APPELLANT'S POINTS AND AUTHORITIES. 
1. 

THE STEAMER WAS NEGIIGENT. 

The undisputed testimony given in behalf of the steamship 
State of California, the Respondent, demonstrates that the said 
steamship was guilty of gross negligence in the following par- 
ticulars: 

(A.) The said steamship did iiot slow down, stop or reverse upon first 
sighting the Portland, or at any time afterward, or take any precaution 
to avoid a collision. 

The evidence on this point is beyond contradiction, and it is 
equally beyond controversy that the collision would not have taken 
place, but for this breach of duty on the part of the steamer. The 
master of the steamer testifies : 

" The steamer was running at a speed of thirteen knots." (Debney, 
p. 67.) 

" The Portland was seen five minutes before the collision." (P. 70.) 

' ' The distance between the two vessels at that time was a mile and 
" a half or two miles." (P. 77.) 

" Q. At the rate you were going, about 13 miles an hour, how 
" long would it have taken you, if you reversed your engines, to 
" have brought your ship to a dead stop. What distance would it 
" have taken you ? A. She would have gone probably five times 
" her length. 

" Q. What was her length '? A. 315 feet." (P. 77.) 

•' Mr. McGraw — Q. By reversing your engines you could have 
" brought your steamer to a dead stop at a quarter of a mile ? A. 
" 1 do not know whether that makes up a quarter of a mile. I gave 
" the answer once. 

" Q. Four times in length would be 1,260? A. That is my an- 
" Bwer to it. 

" Q. You say three or four times its length. Do you mean 
" there would be that difference between the distance as the circum- 
' ' stances varied, as the tide or wind was for or against you ? A. 
" I meant at that particular time in the way we were going with the 



4 AMERICAN BARKENTIXE PORTLAND VS. 

" wind and sea, she would have gone that distance through the 
" water. 

" Q. Through the water after you had reversed your engines ? 
" A. Through the water after she had reversed her engines full 
" speed. The weight of the ship had a great deal to do with it. 
" We were loaded heavy. 

" Q. The momentum ? A. The momentum. 

" Q. After you first sighted this barkentine there was ample 
" time to have fully stopped your vessel before the collision ? A. 
" Yes, if I had seen the vessel — if I had commenced immediately to 
" stop and back there was time. It is not customary to do that 
" every time you see a vessel." (P. 78.) 

" Q. After you first siglited the sails of the Portland did you 
"give any orders at all as to the course you were steering? A. 
" No, sir. 

" Q. Did you slacken speed? A. No, sir. 

" Q. Nor reverse ? A. No, sir. 

" Q. Nor change your course? A. No, sir." (P. 73.) 

" Q. After you first sighted this barkentine you gave no order 
" whatever? A. No, sir. 

" Q. Up to the time of the collision ? A. No, sir." (P. 79.) 

On page 67 the witness testified that not seeing an\' lights he sup- 
posed the barkentine was steering in the same direction as the 
steamer. 

The learned Judge of the District Court, in his opinion (p. 273), 
said: 

' ' It w-as suggested that the steamer should have moderated her 
" speed, when the sail of the barkentine was descried. 

" But, the red light of the latter was not then visible and the 
" steamer was justified in supposing that the vessels were sailing on 
" nearly parallel courses and were not approaching each other. It 
" is only in the hitter case that the regulations required her to 
" moderate her speed." 

The regulations referred to read as follows: 

" Art. 17. — If two ships, one of which is a sailing ship and the 
" other a steamship, are proceeding in such directions as to involve 
" risk of collision, the steamship shall keej) out of the way of the 
" sailing shij). 

" Art. 18. — Every steamship when approaching another ship so 
" as to involve risk of collision, shall slacken her speed, or stop and 
" reverse, if necessary." 

23 Stats, at Large, p. 441. 

" Art. 20. — Notwithstanding anything contained in any preceding 
" article, every ship, whether a sailing ship or a steamship, over- 
" taking any other, shall keep out of the way of the overtaken ship. 

" Art. 24.— Nothing in these rules shall exonerate any ship or the 
" owner or master or crew thereof, from the consequences of any 
" neglect to carry lights or sigaals, or of any neglect to keep a proper 
" lookout, or of the neglect of any precaution icliicli may he required by 
' ' the ordinary practice of seamen or by the special circumstances of the 
" case." 

23 Stats, at Large, p. 442. 



PACIFIC COAST STEAMSHIP COMPANY. 



We submit that the learned judge was clearl}- in error as to the 
duties and privileges of tlie steamer. 

The captain of the steamer was not justified, from not seeing any 
lights, in supposing that the vessels were sailing on nearly parallel 
courses, and were not approaching each other. If such had been 
the case he should have expected tp see a white light or a flare-up 
light. It is just as imperative a duty for a vessel to exhi it such 
lights under such circumstances, as to carry the ordinary red and 
green lights. 

"Art. 11. -A ship which is being overtaken by another shall 
" show from her stem to such last modioned ship a while light or a flare 
" up light." 

23 Stats, at Large, p. 440. 

Seeing no light at all the master of the steamer had no right to 
indulge in any suppositions. It was his duty to stop at once and 
make no move until the course of the other vessel could be ascer- 
tained. This duty of his cannot be a subject of controversy. It is 
settled by an unbroken line of authorities, English and American. 

In the Hermann, 4 Blatch., 441, a steamer discovered a vessel on 
the port bow but could not make out her course. Steamer ported. 
She was going eleven knots; if steamer had starboarded instead of 
porting there would have been no collision, but the officer on 
deck supposed the vessel's course was diU'erent from what it, in fact, 
was. The Court (Judge Nelson) says: "The fault of the Her- 
rmann is too obvious to require observation. She should have slowed, 
" stopped or backed, according to the necessity of the case, until the 
" true position of the Reindeer could be discovered." 

In the Northern Indiana, 3 Blatch., 108, the Court says: 

" The mate (of the steamer) was clearly in fault in ordering the 
" helm hard-a-port. The helm should probably have been ordered 
" hard-a-starboard; but as the inate could not at the time he first descried 
" the schooner determine ivhat order he ought to give to the helmsman, he 
" should have reduced the speed of the vessel at once and, as much as 
" practicable, and only have given an order to change the course of 
" the steamer after he had ascertained what order was necessary to 
" prevent the collision." (Citing The Perth, 3 Hagg., 414; The 
James Watt, 2 W. Rob., 270.) 

In N. Y. & Va. S. S. Co. v. Calderwood, 19 How. (U. S.) 245, a 
steamer made a mistake as to the position of a vessel and collision 
ensued. The Superior Court by Campbell, Justice, says: 

" This Court has decided that neither rain nor the darkness of the 
" night, nor the absence of light from a barge or sailing vessel, nor 
" the fact that the steamer was well manned and furnished and con- 
" ducted with caution will excuse the steamer for coming into col- 
" lision with the barge or sailing vessel when the barge or sailing 
" vessel is at anchor, or sailing in a thoroughfare out of the usual 
" track of the steam vessel. In the present instance the steamer 
" had notice that a vessel was before her, and xoas near her track, 
' ' and under the circumstances she teas bound to take cedent measures 
" to avoid the schooner." 

In Louisiana v. Fisher, 21 Howard, 5, the Supreme Court (Camp- 
bell, Justice) says: 



AMERICAN BAEKENTINE PORTLAND VS. 

" It also satisfactorily appears that the schooner was in fact dis- 
covered by the lookout on board the steamer vi'hen the vessels 
were several hundi'sd yards apart, and that, by careful manage- 
ment of the steamer, the collision might then have been avoided." 
" ' The captain of the Louisiana says that: 

" 'After passing the Eappahannock light-boat I saw a black 
object; it appearod heading about south southwest down the bay; 
it was about two points or two points and a half to the east of us. 
I could not toll at tljat moment whether it was a vessel at anchor 
or under way, but directly discovered it was a vessel under way, 
and she kept right hard off to the westward. This vessel had no 
lights. I think the distance was from two hundred yards to two 
hundred and fifty. As soon as I saw her jib I called to Mr. 
Marshall (pilot) to stop and back.' Cross-examined, he says: 
' From the "time I first say the vessel until the time of the collision 
was, I should suppose, two minutes, more or less. The vessel 
changed her course and kept oft' hard to the westward. I saw her 
jib, which enabled me to judge that it was a vessel under way. 
The change took place immediately after I first saw the object. 
AVhen I first saw it it looked like a cloud. I could not tell if it 
was a vessel at anchor or under way. When I saw the jib I first 
knew it was a vessel under way.' 

" NokoithstandUuj the uncertain ti/ in the mind of this officer, the ves- 
sel under his command continued on in her voyage lolth unabated 
speed. No order loas given to arrest her progress till a collision loith 
the schooner had become inevitable. This ivas a grave error, and it 
ivas followed bii disastrous consegaences for ivhich the oivners must 
render indemnity. In the case of the Birkenhead (3 VV. Hob., 75) 
the steamer was directed upon the supposition that a sailing vessel 
under way was at anchor and proper precautions were taken under 
that hypothesis. Thv circumstances were such as might have occa- 
sioned a mistake. But the Judge of the Admiralty, with the advice 
of the Trinity masters, condemned the steamer to compensate for 
the collision, saying, ' that she should not have prosecuted her voyage 
in any uncertainty, but should have eased or reversed her engines until 
the fact ivas ascertained.^ " 

" The case of the James Watt (2 W. Bob., 271) is similar in its 
circumstances to the one under consideration. The master testi- 
fied that when he discovered the sailing vessel he ported his helm 
without stopping to ascertain her course. 'In my apprehension,' 
said the Judge, ' the master of the James Watt would have acted, 
under the circumstances, with greater prudence and caution, if 
upon first discovering the sailing vessel, instead of porting his 
helm, he had continued his course at slacked speed by easing his 
engines till he was able to discover the course the sailing vessel ivas 
steering aad then acting according to circumstances. If he had 
pursued this course it is apparent from the evidence that, in the 
short space of about a minute after the sail was reported, he would 
have discovered her course, and could have adopted the measures 
that might altogether have prevented the collision.' 
"The evidence shows that the George D. Fisher was making a 
southwest course and was close hauled upon the wind. That she 



PACIFIC COAST STEAYSmr COMPANY. 7 

" did not vary her course after the steamer came in sight. Tliat the 
" steamer was first directed to the westward ai;d afterwards to the 
" eastward, and then stopped and backed, and that these contrary 
" movements were the results of the doubts of her officers as to the 
' ' position or course of the schooner. If the order to ease (lie evgines, 
" or stop, had beeii given in the first inskoice the j^iohabiUti/ is that the 
" catastrophe ivould have been avoided. 

" The decisions of this Court have settled that this was the duty of 
" the steamer under such circumstcoaes. (Peck v. Sanderson, 17 How., 
"178.) 

" To same effect see Chamberlain r.Ward, 21 Howard, 568-9." 

In Nelson v. Lei and, 22 Howard, 55, the Supreme Court (McLean, 
Justice), says: " But we think there was also fault in the steamer. 
" In rounding the point it is admitted the steamer was at least 300 
" jards below the flat boat. Seeing the light ahead, the master, in 
" the use of ordinary caution, should have sfoj^ped his boat at once 
" and reversed her wheels urdil the locality of the light icas clearly ascer- 
" taived. It is no excuse that he mistook the light for a place of 
" landing. The commander cannot lessen his responsibility by 
" alleging his mistake. He is boKvd to make no mistake, for it is his 
" duty to stop) his boat ivhere he doubis utdil he ascertains facts. Had 
" this been done the collision could not have occurred He could 
" have backed his boat until he avoided the flat boat. In not hav- 
" ing done this the steamer was at fault." 

In The Illinois, 6 Blatch., 258. the Court says: 

" The fault of the steamer * * * was in not checking her 
•' speed and even stopping, if need be, after she lost sight of the 
" lights of the schooner until she again discovered them. There is 
" 710 excuse for this neglect. The duty has been repeatedly enjoined by 
" the decisions of the Courts, and is obvious to all persons of any experi- 
" ence in navigation." 

See also 

The Jesse W. McKnight, 45 Fed., 590. 
The Schmidt, 43 Fed.. 398. 
The Alaska, 22 Fed., 548. 
Johnson v. Mayor, 40 Fed., 601. 
Toe City of Merida, 24 Fed., 229. 

In The Pottsville, 24 Fed., 655, the steamer heard the fog horn of 
a schooner and mistcdcing the direction did not stop. The Court says : 
" The exact position of the approaching vessel could not be known 
" and hence there was risk of collision. In such a situation it is not 
" sufficient merely to slacken speed. He should have stopped and 
" reversed." 

In The Columbia, 27 Fed., 238, the steamer saw a dark object 
ahead, but no lights. Order hard-a-port was given and a col- 
lision took place. Steamer could have been stopped in twice her 
length. The Court says: " The order shoidd have been to stop and 
"reverse. Upon the steamer's oivn evidence this ivould have prevented 
' ' the accident. This was required by the sailing rules of both na- 
" tions, and was the plain duty of the steamer." 



8 AMERICAN BARKEXTIXE PORTLAND VS. 

The snme rule is announced by Judge Hoffman in 
Piug-Oa V. Blethen, 11 Fed., 607-618. 
S. C, 7 Sawyer, 482, 
as follows: 

" If by reason of the smoke neither of the side lights of the tug 
" and tow could be discerned, the steamer had no right to assume 
" that they were approaching end ou or nearly end on, and on that 
" assumption to port her helm. It was her duty to blow her whistle 
" and to slacken her speed (eight miles per hour) or stop iintiJ the 
" course of the np/voaching vessel could he ascertained ," and the learned 
judge quotes with approval from the decision of Sir Barnes Pea- 
cock, in The Bona and Ava, 5 Mar. Law Cas. 183, as follows: 

" If it be said on the part of the Ava that at the time the Bona 
" was nearly enveloped in her own smoke, the answer is, that if from 
" the first the Ava hud slacked her course iintil she knew what the 
" real position of the Bona was, she need not have been in a position 
" of having to make any maneuver in ignorance of the real state of 
" things. After considering the whole of the evidence attentively, 
' ' their lordships have arrived at the conclusion that the Ava was in 
" fault in not slackening her speed and waiting to ascertain, he/ore she 
"ported her helm, what was the real position of the Bona." 

The judge also cites The Louisiana, 21 Howard, from which a 
quotation is given supra, and The Continental, 14 Wallace, 345. 

In The Alabama, 10 Fed., 394 (S. C, 4 Woods, 48), the sail ves- 
sel had improper lights, which tended to mislead the steamer. The 
Court says: '^ It was the duty of the steamer to keep out of her way. 
" It was on the open bay where there was plenty of room, and the 
" sloop was seen by the quartermaster of the steamer near two miles 
" off. //' the sloop had no lights at all, the steamer sJioidd have avoided 
' ' the collision if her pilots saw the sloop." 

In Hohen v. The Westover, 2 Fed., 91 (S. C. , 5 Hughes, 133), the 
Court says: " The rule is well settled that if the lights of the sail- 
" ing vessel are fluctuating, or for any reason there is uncertavdy as 
" to her course, the steamer must in time slacken her speed and if neces- 
" sary stop and back, and neither proceed or change her course until the 
' ' course of the sailing vessel has been ascertained." Citing numerous 
cases. 

See also, the decisions of Judges Sawyer and Hoffman, in The 
Ancon, 17 Fed., 742, and also S. C, in 8 Sawyer, 334. 

In the face of this array of American decisions, it is surely unne- 
cessary to fortify them by further English citations. We confidently 
assert that no case, English or American, can be found which will 
justifv or excuse the course of the master of the State of California 
as shown by his own testimony in this case. 

But the decision of Judge Hoffman that the steamer seeing no 
light was justified in supposing that the sailing vessel was going on 
- a nearly parallel course, is not merely erroneous in the light of the 
statutes and of the unbroken current of authority; it is also a trigo- 
nometrical and mathematical error, as will be apparent from inspec- 
tion of the diagram on the following page, the angles of which were 
intended to be correctly laid down, but are, in face, only approxi- 
mately correct. According to claimant's testimony , the vessel when 



PACIFIC COAST STEAMSHIP COMPANY. 9 

seen was two points oflf the starboard bow of the steamer. (P. 70.) 
Two points is twenty-two and one-half degrees. Now, looking at 
the diagram, suppose the steamer's bow to be at A and the steamer 
on the course A B. She sights a vessel but no light, two points, 22J 
degrees, oil" lier starboard bow. The vessel may be anywhere on the 
line A L. Wo will suppose her red light is at E, and tliat the red 
light may be seen on the course of the steamer at K. We suppose 
that the angle A E K is the same as the angle E A K, that is, 22J 
degrees. The course of the vessel, her red light being visible for 
the first time at K, would, if she carried regulation lights, be 112i 
degrees to the starboard or right of the line E K. Articles '6 and 6 
of the Statutes of 1885 (23 Stats, at Large, pp. 438, •i39), provide 
that the red light of a sailing vessel must be visible from a point 
right ahead to two points abaft, the beam on the port side over an 
arc of the horizon of ten points of the compass. Ten points is 112| 
degrees, therefore, the course of the vessel would be C D, intersect- 
ing the course of the steamer at F While the steamer was at A 
and the vessel at E the red light of the vessel would not be visible 
from the steamer, and yet the two vessels would be sailing on con- 
verging courses, which render the peril of collision imminent. 

It the relative speed of the vessels were such that the sail vessel 
would make the distance E F, in the precise time that the steamer 
would make the distance A F, it is manifest that the red light of 
the former would continually keep out of sight of the steamer until 
the exact second of the collision, and that it might very easily hap- 
pen that the steamer might crash into the stern of the sailing vessel 
without ever having seen her red light. 

While this proposition appears to us self-evident from an inspec- 
tion of the diagram, it can be easily demonstrated mathematically. 

Suppose the distance A F is one geographical mile, 5,280 feet, 
then knowing the angles E A K, A E K and K E F, it is a simple 
problem to ascertain the length of the lines E F, K F and A K. 
It will be found that E F is 2,857.52 f.-ot, that K F is 3,733.52 feet, 
that A K is 1,546.48 feet, and that A E is the same as E F, 2,857.52 
feet. 

It would thus appear that with the steamer at A and the vessel at 
E, they were but little over half a mile apart, with the red light of 
the vessel invisible from the steamer. Let us suppose that the 
steamer can make the distance A F and the vessel the distance E F 
in just five minutes. 

The steamer would be progressing at the rate of a mile in five min- 
utes, to wit, 1,056 feet per minute; the line of light from the red 
light of the vessel, to wit, the line E K, would on the line A F keep ■ 
pace with the progress of the schooner on the line C D. The 
arrival of the vessel and its light at F would be simultaneous; there- 
fore on the line K F the line of light E K would progress from K to 
F in five minutes, the distance between K and F being, as we have 
shown, 3,733.52 feet the line of light would progress at the rate of 
746.704 feet per minute. As the steamer is progressing at the rate of 
1,056 feet per minute it would gain on the light at the rate of 309.296 
feet per minute. As at the start the line of light was 1,546.48 feet 
in advance of the steamer, she would overtake the line of light in 



10 AMERICAN BABKENTINE POUTLAXD VS. 

just precisely the quotient in minutes of l,5:i6.48 divided by 309.296, 
which is just precisely five minutes. In other words, the steamer 
would not see the red liglit of the vessel until the iustant of col- 
lision, and if she was half a second late in arriving at F she would 
crash into the vessel astern of the red light aud woiild not see it at 
all. Under the principles of Judge Hoffman's decision the steamer 
would be entirely justified in running the sail vessel down. A de- 
cision which may lead to such results cannot be correct. 

We submit that from the testimony already cited and the decis- 
ions of the Courts applicable thereto, that it is manifest that the 
master of the State of California violated the four articles of the 
sailing regulations already quoted, and that if it be conceded that 
the Portland was in fault, the only judgment that could be given was 
one for division of damages. 

But the testimony which we have cited, does not disclose to its 
full extent the culpability of the master of the State of California. 

On his direct examination, Debuey testifieshe saw the vessel four 
or five minutes before the collision. (P. 6i.) About five minutes. 
(P. 70.) On cross-examination, he thinks the vessel was IJ or 2 
miles away when first seen. (P. 77.) As the steamer was going 13 
miles an hour, it is evident that the steamer must have sighted the 
barkentine from seven to ten minutes before the collision. They 
were appioachicg at nearly right angles. Judge Hoffman, in his opin- 
ion, says that tlje vessels were approaching each other on courses 
which were not far from at right angles to one another. (P. 267.) 
In that respect his decision is in accordance with the evidence. 

That being the case, it very conclusively appears that Debney's 
testimony that he saw the barkentine at from R to 2 miles distant, 
discloses that he must have seen her from seven to ten minutes be- 
fore the collision. 

Two or three minutes after first sighting the vessel, Debney 
noticed that she was approaching the steamer. (P. 70.) If he first 
saw the vessel five minutes before the collision, he noticed that she 
was approaching the steamer from two to three minutes before the 
collision, but if, as is ]irobable, he saw the vessel from 7 to 10 min- 
utes beiore the collision, then he definitely knew that she was an 
ap|iroaching vessel from five to eight minutes before the collision, 
and yet no steps whatsoever were taken by the steamer to avoid a 
collision. 

Finally, the red light of the barkentine was seen by the steamer 
in ample" time to have avoided a collision. Debney first said he 
saw the light four or five minutes before the collision, but under 
prompting from his counsel he took that back. (Pp. 64, 65.) He 
finally said he saw the red light of the Portland less than a minute 
before the collision. How much less he does not say. (P. 66.) 
Stephens says a minute, more or less. (P. 88.) Even then he took 
no steps to avoid a collision ; when asked his reasons why he did not, 
he answers: " I remaiked to the second officer that it would be im- 
' • possible to clear her any other way than to get across her bow. I 
" said it is too late to do anything else, we must try and get across 
" her bow." (P. 67.) But the second officer, Stephens, testifies there 



PACIFIC COAST STEAMSHIl' COMPANY. 11 

" was no conversation whatever between him and Debney." (P. 
89.) Evidently Debney did not tell the truth. 

It is very certain that if, when the master of the State of Califor- 
nia realized that the sail vessel was approaching him, he hid ex- 
ercised any precaution whatever there would have been no collision. 

If when he first saw the li<j;ht of the barkeiitiiie, he had either re- 
versed or iiorted his helm, theieby turning the steamer to the south- 
ward, it is almost certain there Avouid have been no collision. If 
he had reversed under a port helm it is absolutely certain there 
would have been no collision. Yet he did nothing at any time ex- 
cept to continue his course at the rate of thirteen miles (nautical) an 
hour. 

The course of the master of the State of California after the first 
sighting of the barkeutiue demonsti'ates his contempt for the Statutes 
of the United States, his utter disregard of his duties as master of a 
steamer, and his entire ilisrespect for all I'ulesaud regulations. He 
evidently thought that the sea was his and that he could do thereon 
as it pleased him. 

{B) The steamer had not a sufficient watch. 

She had only one lookout on the extreme bow fifty feet from the 
bridge. (Testimony of Debney, Transcript, pp. 74, 76, 78, 79; 
Testimony of Doran, Transcript, pp. 96, 97.) 

No one of the crew was on watch in or near the pilot house. 
(Testimony of Debney, Transcript, p. 54.) 

The failure to have one of the crew on watch in or near the pilot 
house was a violation of an express rule of the supervising inspect- 
ors. Rule 8, Subdivision 8 of those rules, reads: "All passenger 
" and ferry steamers shall, in addition to the regular pilot on watch, 
' ' have one of the crew also on watch in or near the pilot house, and 
"this rule applies to all steamers navigating in the nighttime." 
The supervising inspectors have power to make rules which have 
the force of laws. 

Revised Statutes, Section 4405. 

Independently of the rule one lookout on a large steamer is not 
sufficient even on a clear night. 

The Colorado, 1 Otto, 698. 

In the Agnes Manning, 44 Fed., 10, the evidence was that (on a 
steamer) there was only one lookout (three men altogether) on the 
steamer's deck at the time of the collision. (This is the exact num- 
ber on deck of the State of California.) The Court says: "The 
" Manhattan [the steamer] was in fault. The proofs show this 
" very distinctly — so distinctly that her proctor admitted it on the 
" argument. Her duty required her to keep off and she did not. 
" Her lookout tvas defective." 

{(J) There tvas gross negligence on the part of the captain of the 
steamer in not responding to the first hail from the lookout. 

The evidence is that the lookout on first seeing the barkentine 
hailed the bridge with the call " Sail on starboard bow" or words 
to that effect. Debney heard the call and made no response. It is 
always customary to respond to such a call. 

Debney's testimony on that point is as follows: 



12 AMERICAN BARKEXTINE PORTLAND VS. 

" Q. What person called your attention to the Portland the first 
"time? A. The report from the lookout. 

" Q. You did not see her until your attention was called to her 
" by the lookout ? A. No, sir. 

" Q. How did the lookout report, by hailing you, or by coming 
" back? A. By hailing, ' Sail on the starboard bow.' 

" Q. "Where was he when he hailed you? A. On the lookout. 

" Q. In the bow-? A. At the bow; that is, near the bow. 

" Q. What answer did you make to that report, any ? A. I 
" believe there was no answer made the first time that he reported, 
" and he reported it again, and I answered him 'All right.' 

" Q. Did you hear his report the first time? A. Yes, sir. 

' ' Q. When he reported the second time where was he ? A. On 
" the bridge looking at the sail. 

" Q. Then he came back from the bow? A. I do not know 
" whether he did or not. I could not say. I heard the report. I 
" was not watching him. 

" Q. I asked where he was when he made the report? A. I 
" could not say. He was. forward somewhere. I do not know 
" whether he stepped back. 

" Mr. McAllister. — Q. You do not mean to say this man was 
" on the bridge? A. No, sir. 

*' Q. You said so. A. I understood him to ask where was I 
" when he reported the second time. I answered on the bridge 
" looking at the sail. 

" Mr. McGraw. — From the point where the lookout was stationed 
" how far was it to the bridge ? A Fifty feet. 

" Q Did the lookout when he came back to you state that he 
" hailed you three or four times with "A vessel on the starboard 
" bow," and could get no answer? A. I never said the lookout 
" came back. You said that. I never said it. 

" Q. Yousay now you do not know when he came back? A. That 
" is what I say. I do not know whether he came back or not. I 
" heard the report. I did not see him. 

" Q. When you heard the second report, did he tell you he had 
" hailed three or four times, and could get no answer ? A. No, sir." 
(Pp.75, 76.) 

Charles Stephens testified as follows: 

" Q. When the lookout first reported this vessel, where was he ? 
" A. The lookout was forward. 

" Q. Did he hail from forward? A. Yes, sir; he hailed from 
" forwartl. 

" Q. You heard him? A. Yes, sir. 

" Q. Did he afterwards report again ? A. Yes, sir; he reported 
" a second time. 

" Q. Where was he when he made the second report ? A. For- 
*' ward, somewhere forward of the pilot house. 

" Q. He did not come back to the bridge? A. He never comes 
" to the bridge. He comes somewhere near the pilot house. 

" Q. What is the name of the lookout? A. Charles Doran. 

" Q. Is he here? A. Yes, sir; he is here." (P. 94.) 
Doran, the lookout, testifies as follows : 



PACIFIC COAST STEAMSHIP COMPANY. 13 

" Q. When you saw that dark object on the starboard bow, what 
" notice did you give of it to the master or mate? A. I sang out 
" 'A vessel on the starboard bow.' 

" Q. Did you say ' a vessel or a sail ?' A. I could not recollect 
" which I said, whether a vessel or a sail. It in all the same. 

" Q. Did you get a response to that ? A. I might have got it, 
" but I did not hear it. 

" Q. Did you give a second notice of it? A. Yes, sir. 

" Q. In the same terms and words? A. In the same terms. 

" Q. When you gave those two notices where were you? A. 
" The first notice I gave was on the forecastle head, the second notice 
" I stepped back to the pilot house, where I got my answer that it 
" was all right." (P. 97.) 

" Q. When you hailed the bridge conveying the information of a 
" sail is it usual to get an answer? A. The first time, as I told 
" you, I could not hear the answer. 

" Q. Is it usual to get an answer ? Do you expect an answer when 
" you hail the bridge? A. Yes, sir; it is customary always. 

" Q. It is customary for the bridge to give an answer ? A. To 
" give an answer when they hear it." (P. 101.) 

In consequence of not getting an answer from the bridge the look- 
out left his post of duty and ran back to the pilot house and hailed 
again. (Testimony of Doran, p. 97.) 

If the lookout had remained at his post he would probably have 
seen the light of the barkentiue sooner than he did. The necessity 
of the lookout leaving his post is clear evidence of negligence. 
The Colorado, 1 Otto, 700. 

No reason is given for not answering the first hail of the lookout, 
but nevertheless the reason sufficiently appears from the testimony. 
Where Capt. Debney was at the time does not appear, but he was 
not on the bridge where he should have been. (Debney 's testimony, 
Transcript, p. 64.) 

Stephens says he is second mate of the State of California; that 
he came on deck the night of the collision about two or three min- 
utes past four; he went up on the bridge and relieved the third 
officer. 

" Q. Who else was on the bridge besides yourself? A. The 
" captain and the third officer. 

" Q. When you took the third officer's place, he left? A. Yes, 
" sir. 

" Q. You and the captain remained on the bridge ? A. Ye^Just 
"for about a minute the captain remained there." 

Debney evidently did not know whether the first hail was answered 
or not. He says, "I believe no answer was made." (P. 75.) 

The absence of the lookout from his post of duty at a critical 
period, has always been held to be gross negligence. When a col- 
lision is impending seconds of time are material. If Doran, the look- 
out, had not been compelled to desert his post to run back fifty feet 
to get an answer from a negligent or absent captain, he might have 
seen the lights of the barkentine much sooner than he did. The 
fact is patent that he was absent from his post at a most critical 
period. 



14 AMERICAN BAKKENTINE PORTLAND VS. 

In Catharine v. Dickinson, 17 How. , 170, the lookout at a critical 
moment was taken from his post to assist in reefing sails. Held 
negligence. 

In Whitridge v. Dill, 23 How., 448, where in consequence of an 
accident, all hands, including lookout, were required to haul in sail. 
Held the absence of the lookout from his post was negligence. 

The want of a proper lookout is culpable neglect, and proof that 
immediately preceding a collision, one of the vessels was in fault in 
this respect, is enough to render her presumably liable for the 
injury done. 

The Genesee Chief, 12 How., 443. 
Goske V. Chute, 18 How., 464. 

Berd V. The New Haven, 18 How. Pr. (N. Y.), 482. 
The Emilv, 4 Olcott, 132. 
The Ariadne, 13 Wall., 475. 
Neither the master, the officer of the deck or the man at the wheel 
are competent as a lookout. 

The New York, 18 How., 223. 
The Ottawa, 3 Wall., 268. 
TheTillie, 13 Blatch., 514. 
Chamberlain v. Ward, 21 How., 548. 
The Parkersburg, 5 Blatch., 247. 
Hazlett V. Conrad, 1 Dill., 79. 
(D) The speed of the steamer, thirteen miles an hour, on a dark niyht 
and at the entrance of a harbor, loas too great. 

This rule may be laid down as a rule oa all occasions, fog or clear, 
light or dark, that no steamer has a right to navigate at such rate 
that it is impossible for her to prevent damage, taking all precau- 
tions at the moment she sees danger to be possible, and if she 
cannot do that without going less than five knots an hour, then she 
is bound to go at less than five knots an hour. 

The Privy Council in the case of the Europa, approved in The 

Pennsylvania, 19 Wallace, 134. 
See The Londonderry, 4 Notes of Cases, Supp. XXVII, 
XXVIII. 
' ' The opinion of the Trinity masters was that being propelled at 
" full speed (11 to 12 miles at hour) oq a dark night and in a posi- 
" tion where there are many vessels sailing to and from Liverpool, 
" and, with only one man as a lookout on the forecastle, she was not 
" navigated as she ought to have been and as the circumstances re- 
' ' quired." 

The Iron Duke, 9 Jurist, 478. 
If the steamer had been going at the rate of five knots at the time 
when Capt Debney first admits that he saw the red light, there can 
be no question that a collision could easily have been avoided. 

There is a conflict between the testimony of those on the barken- 
tine and those on the steamer as to the force and direction of the 
wind. As to that point the testimony of witnesses on a sail ves- 
sel is entitled to much more weight than that of witnesses who were 
on a steamer. 

Genessee Chief v. Fitzhugh, 12 How., 461. 
There appears to have been a gross lack of discipline on the 



PACIFIC COAST STEAMSHIP COMPANY. 15 

steamer. The watcb should have been relieved at four o'clock A. M. 
Stephecs, lliird officer, who should have been on the bridge at 4 
o'clock did not get there till some minutes after. (P. 218.) Doran, 
the lookout, -who should have been relieved at four o'clock, was not 
relieved at all. (P. 230.) The collision occurred daring this de- 
moralization of the watches. It does not appear whether or not 
the man at the wheel was relieved at all that night. 

We respectfully submit that no case can be found in the books 
which presents a more emphatic case of fault, negligence and lia- 
bility on the part of the steamer, than the case at bar. 

II. 

TEE BARKENTINE PORTLAND WAS NOT AT ALL IN FAULT. 

The only fault attributed to the barken tine in the decision of 
Judge Hoffman is, that her lights were not burning properly, and 
perhaps, that she did not have proper lights; 

(A.) As to xoliether or not her lights loere hurnwg properly, the testi- 
mony is as fulloias: 

Bressen, a seaman, on deck of the Portland at the time of the 
collision, testifies that her lights were rigged on the mizzen rigging 
(p. 34), seven or eight feet above the poop deck; he saw the steamer 
light off the port bow of the barkentine about half an hour before 
the collision. (P. 35.) The barkentine kept on her course; Peter- 
son, the mate, saw the lights of the steamer (p. 36); he saw it was 
a steamer light; the barkentine was close on the wind (p. 37); I saw 
our red lights before the collision. I saw the lights of the Port- 
land; they were burning and burning bright. (P. 40.) When we 
saw the steamer lights we looked at the lights of the barkentine and 
saw they were burning. (P. 42.) The lights of the barkentine were 
not taken down after we sighted the steamer. (P. 55.) 

Abram Isaacs, a seaman of the Portland, on deck at the time of 
the collision, says: I saw the lights of the State of California ten or 
fifteen minutes or something before the collision. It was a good 
while before that I see her, I was amidships forward of the main 
mast. (P. 109.) I saw the red light of the Portland after I saw the 
steamer's lights. All the lights of the Portland was up; the barken- 
tine was lighted up; red light and green light was out; two of them; 
I could see them from where I was on deck. I saw them all the 
time since I came on deck; as soon as I turned my eye aft I saw the 
lights; from the time I first saw the steamer's lights up to the time 
of the collision the lights of the Portland were good, burning clear 
all the time; bright light. I saw the lights of the Portland after the 
collision; they were burning good, clear and bright. (Pp. 110, 111.) 
I was on the lookout at the time (P. 112.) 

Andrew Parks, the man at the wheel on the Portland, at time of 
the collision, said: I went to the wheel about two o'clock. (P. 223.) 
Was at the wheel at the time of the collision. (P. 220.) I saw the 
barkentine's side lights when I went to the wheel; thev were burn- 
ing brightly. (P. 221.) 

Edward Paterson, first officer of the Portland, in charge of the 
deck at the time of the collision, says he saw the steamer's light 



16 AMERICAN BAKKENTIXE PORTLAND VS. 

about fifteen minutes before tbe collision; first saw the mast head 
light, and then the green side light; when I saw the side light, the 
first thing I done was to see if our lights were burning bright as 
they ought to be, and I found they was doing so; burning as they 
ought to burn; as bright as they should burn. (Pp. 147, 148.) A 
man by the name of Dan Mullaue when we first saw the steamer, 
said to me, " Is your red light burning?" and I said "Yes, it is 
burning briglit, and all the men went to the sail and found it so 
too." (Pp. 150, 151, IGl, 168.) The lights on board o-jr ship were 
put out as soon as the sun goes down; a little after sun down; 
the steward puts them out; the steward takes care of them and cleans 
them, except if they happen to go out, and the ofiicer of the deck 
takes them down and trims them; the steward lights them and 
puts them out of the cabin, and then whoever is in charge takes 
them and puts them up, either himself, or sends a man to put them 
up. (P. 162.) Our red light was taken down that night. I took 
it down myself after tliree o'clock; took it to the pantry, trimmed 
the wick and wiped off the glass; because I wanted the light to burn 
bright. I put it on the rigging after that; the green light was not 
taken down, it was not required. (P. 164.) 

James Donelly, master of the Portland, says: The side lights of 
the Portland were on the mizzen rigging six or seven feet 
above the sail. (Pp. 121, 122.) I came on deck immediately be- 
fore the collision, when the steamer was within a ship's length of 
us. (P. 125.) Immediately after the collision, about the first thing 
I did was to look at the lights. I found they were burning brightly; 
the red light was on the port side, and the green light was on the 
starboard side, in their proper places. (P. 131.) 

James Daly, a seaman on the Portland, was below at time of 
collision, was wakened by the collision and came on deck immedi- 
ately after: When I came on deck I did not notice the lights of 
the Portland exactly at first. I saw them after; I looked around 
to see that they were burning; I could not say exactly how long 
after I came on deck; I just had to look forward to see how things 
were there and then I saw that the lights were burning; they were 
burning bright, both lights. It was not as much as half an hour 
after I came on deck. (Pp. 205, 206.) It was not half an hour after 
the collision when I looked at the lights; it was natural for me to 
look and see if the lights were burning. This is the side I was on 
and I looked around to see and the lights were burning, burning 
bright. (Pp. 211, 212.) 

J. P. Bennett, steward on the Portland, says: I attended to the 
lights, cleaned and filled them. They were cleaned and filled the 
day before the collision. (P. 48, 186.) I saw the lights after the col- 
lision while they were still in the rigging; the red light was burning 
bright; was below at the time of the collision. (Pp. 49, 50.) "When 
I came up after the collision I went forward to see what was the 
matter. When I looked over the port side to see if the ship was 
sinking, the lights, I don't suppo.se, were over fourteen feet away 
from me, and the red light was glowing bright. I was forward of 
the light. The port light was on my left hand when I looked over 
the side. The port light was burning brightly — it was a red light; 



PACIFIC COAST STEAMSHIP CJMpAXY, ' 1( 

it shines very strong — green light was also buruing brightly. (Pp. 
188.189.) 

I couKl uot help seeing the port ligiit when looking over the siile 
for it was glaring in my face. (P. 195.) Alter the collision the 
secood mate took the liglits down a\i<[ put tliem on top the after 
liouse or cabin. (P. 49.) I cleaned them after the vessel landed. 
I took them otit" the house; the glass was wet on the outside; when I 
say wet I mean damp; the outside of the lamps was a little wet and 
dirty; did not find the wick almost out and crusted. (P. 201.) 

We respectfully submit that no case can be found in the books in 
which there was more complete and satisfactory proofs as to the 
existence of proper lights than in the case at bar. 

The only testimony contra is that of Debney, Stephens and 
Dorau, officers of tlie steamship, to the effect that they did uot see 
the lights of the barkeutine uutd immediitel}' before the collision, 
and then they saw a dim red light. (Pp. 66, 88, 98.) 

Debney says (p. 66): " Q. Did you see any red light from that 
" bark? A. No, not until I got close to her. 

"Q Did you see it then ? A. Then I saw what I took to be the 
" red light, but very dim." (P. 6n.) 

Stephens says: "I saw a dim red light a minute more or less 
" before the collision." (P. 88.) 

Doran says: " I see a dim red light less than a minute before the 
collision." (P. 98.) 

This is all the testimony there is in the transcript tending to con- 
trovert the testimony that the barkentine had proper lights properly 
burning. The testimony, if true, shows lack of vigilance on part of 
steamer. 

The Sea Gull, 23 Wallace, 174-5. 

Captain Debney, however, on the stand first testified that the sec- 
ond mate and he both saw the light of the barkentine four or five 
minutes before the collision. He immediately corrected himself to 
say it was the vessel he saw — -not her lights. (Pp. 64, ti5.) 

The testimony and manner of the witness were noticed by the 
Court at the time. (P. 65.) 

A very suspicious circumstance connected with the testimony on 
the part of the steamer is the fact that, although asked about it, 
Capt. Debney did not furnish the name of the man at the wheel, 
and he was not put on the stand or his absence accounted for. The 
Court intimated the importance of his testimony, but the intimation 
Avas disregarded. (Pp. 68, 60.) 

The man at the wheel is the best witness as to the course of his 
vessel. He speaks from absolute knowledge. 
The Fannie, 11 Wallace, 241. 
MeMally v. M^yev. 5 Benedict. 240. 
The New York, 1 Benedict, 212. 

The ]>ilot is uot a good witness as to Uie course. 

The Splendid v. The Globe, 35 Hunt. Merch. Mag., 447. 

He may also have seen the red light of the Portland and known 
al.-ju that the captain saw it iu ample time to avoid the collision. 



18 AMERICAN BARKENTINE PORTLAND VS. 

In a case where the captain was not produced as a witness it was 
held that the strong presumption was that his evidence would have 
been against the owners. 

Culbertson v. Shaw, 18 How., 584-88. 
The same presumption is raised by the absence of the testimony 
of the man at the wheel. 

Another very suspicious circumstance is that the testimony of the 
third officer of the State of California is not produced or its absence 
accounted for. Stephens, second officer, testihed that his watch 
was from four to eight. That he relieved the third officer two or 
three minutes past four A. M. (P. 27.) Debney says the collision 
occurred about 4:10 A. M. (P. 62.) The third officer then was re- 
lieved at a time when he may have seen the lights of the Portland, 
but he is not called. 

It was the duty of the sail vessel to hold her course, and she per- 
formed that duty. 

23 Stat, at Large, Art. 17, p. 441, and Art. 22, p. 442. 

Testimony of Bressen, p. 3(5, 41. 
The barkentine lufl'ed up into the wind immediately before the col- 
lision. Parks, the man at the wheel, says when he luffed the steamer 
was with 300 yards. (P. 224.) But for the luffing at that time the 
steamer would have struck the barkentine amidships. (Peterson, p. 
148.) 

The order to lufF was not an error, and if it had been it would 
have been an error in extremis not prejudicial to the bark. 

The Eliza S. Potter, 31 Fed. Kep., 687. 

The Carroll, 8 Wall., 302. 

The Norwalk, 11 Fed. Eep., 922. 

The Lucille, 15 Wall., 679. 

The Falcon, 19 WhU., 75. 

Fair V. Farnley, 1 Fed., 631. /> ^ y— . 

The Algiers, 38 Fed. Hep., 526. ^-^ Jr^..J^ ^j-cM.^f ^-. 
Without lui tlier evidence a case is made against the steamer. 
Trbna facie she is in fault. 

The Colorado, 1 Otto, 695. 
In his comments on the testimony, the learned Judge of the Court 
below errs in his statement of facts. He says: "On board the 
barkentine the ouly jjersous on deck were the mate, Edward Peter- 
sou, anil three men, two of them Bussian Finns, and a third named 
Daniel Mullane." (P. 269 ) 

There were in fact five persons on deck of the Portland, the testi- 
mony of four of whom was taken by iibellauts and appears in the 
transcript, and the unverified statement of the fifth was produced by 
claimants, and appears in the transcript, as follows: Edward Pe- 
terson, mate, on page 63. Robert Bresseu, seaman — a German, and 
a veiy intelligent man, on i)ages 32 and 55. Abraham Isaacs, 
seaman, a Swedish Finn, and intelligent, on page 107. Andrew 
Parks, a seaman, on page 219; his nationality does not appear in 
his own testimony. (We believe it somewhere appears that he was a 
liu.s!:.ian Finu.) And Daniel Mullane, seaman, Irishman, on whose 
btiiUmeiit, on p;ige 229, we shall have occasion to comment. 

'iho learned Judge ilislrubts the testimony of the tiist officer of 



Pacific coast steamship company. 19 

the Portland, on account of a statement made at Hull. The facts 
concerning that statement are calculated to throw discredit on the 
case of tbe State of California rather than on that of the Portland. 
They are fully explained by Peterson, on the stand. A statement 
signed by him at Hull appears, and if it appeared that he did in 
fact make the statement he signed, that fact would tend to discredit 
his later testimony inconsistent therewith, but would not make the 
Hull statement evidence in the case for any other purpose whatso- 
ever. But the facts concerning that statement are more discredita- 
ble to the claimants herein than to the vfituess. 

The facts, which are undisputed and uncontradicted, are as follows: 
Peterson was, at the time of the collision, first officer of the Port- 
land, and in charge of her deck. (Transcript, p. 146.) After the col- 
lision he shipped as first otficer of the ship Astoria, and sailed to 
Europe. (P. 157.) A. M. Starbird, one of the owners of the Asto- 
ria, was also interested in the State of California (pp. 17'2, 173), and 
consequently is interested with the claimants in the result of this 
suit. The fact that at the time he was wanted as a witness by 
us, Peterson was found in the emjiloy of the enemy, warrants the 
belief that it was because he was a witness for us, he was offered a 
berth which would take him to Europe, when he was wanted in San 
Francisco. Peterson and the Astoria arrived at the port of Hull, in 
England. Immediately on his arrival there he was met by a letter 
from Starbird to the master of the Astoria, requesting from him, 
Peterson, a statement of the facts respecting the collision between 
the Portland and the State of California. The captain of the Astoria 
suggested to Peterson that Johnston's clerk had better write the let- 
ter to Starbird, and said to him " he is a smart fellow and will write it 
more correct than you do yourself." Accordingly, Peterson made a 
statement and Johnston's clerk wrote it down, and in writing it down 
interpolated statements which Peterson did not make, which were, 
in fact, false, and which enable the claimants herein, to formulate a 
theory that our red light was not in place at a critical time. The 
statement was not read over to Peterson. He apparently signed it. 
He did not swear to it. He did not see a notary at all, unless the 
person represented to him to be Johnston's clerk was a notary. 
(Trans., pp. 169 to 175.) After making that statement, and within 
a day or two after his arrival in Hull, Peterson received a message 
from libellants requesting him to return to San Francisco. He 
wished to come, but the captain of the Astoria would not permit 
him to do so. Afterward he forfeited some 140 of wages and did 
leave the Astoria (p. 174) and came back to California as second 
mate of the Frederick Bdlings. (P. 157.). Such is the sworn testi- 
mony of Peterson in this case. The deposition in which it ap]>ears 
was taken in the District Court, on the 8th day of July, 1887. Over 
four years have elapsed and the claimants have allowed this testi- 
mony, so damaging to their honor and integrity, which accuses them 
of manufacturing testimony and forging statements, to remain with- 
out any attempt to controvert it. It it were not absolutely true, the 
witnesses to disprove it were at their service: the captain of the As- 
toria, Johnston's clerk and Starbird. The statement attached to the 
deposition does not show that it was ever sworn to, and yet counsel 



20 AMERICAN BARKESriNE TORTLAKD VS. 

in the brief he exhibitefl to the lower Court, calls it an "affidavit." 
The certitica!e of the notary is "Declared at the port of Hull afore- 
said, on the 15th day of October, 1886. Before me. Henry Lam- 
bert, Notary Public' (Trans., p. 142.) By whom it was "declared" 
does not ajipear. Peterson says he never saw a notary in the trans- 
action and yet no attempt is made to get the evidence of Lambert on 
that subject. It is a notorious fact that seamen's wnf^es are much 
lower in EDglaud than iu San Fraucisco. The fact that Peterson's 
employers refused to discharge him in England from his shipping 
contract made in San Francisco, to enable him to return here as a 
witness, evinces their desire to keep him out of our reach at consid- 
erable expense to themselves. Hatl he in fact made the statement 
attributed to him, they woukl have been eager to facilitate his return, 
iu order that he might be a witness for claimants. 

We submit that we have fully demonstrated the proposition that 
the facts suirounding the statement of Peterson, at Hull, are exceed- 
ingly discreditable to the claimant, and that our testimony as to the 
liglits of the Portland remains uncontradicted and unimjieached. 

The fact that our liglits were iu good order and burning brightly, 
is emphasizid by the statement of Dan Mullane. Mullane was a 
seaman on the Portland. It appears by the transcript that he ap- 
peared before some officer on December 27th, 1886, for the purpose 
of giving his deposition on behalf of claimants. (Trans., 229.) The 
name of the officer before whom he ajipeared is not given. His tes- 
timony is not a deposition; it is not certified to by any one; it no- 
where appears that the witness was sworn by any one authorized to 
administer an oath. It does appear that on the cross-examina- 
tion of the witness that he had made previously a certain affidavit 
which was presented to the witness and identitied by him, and is 
marked as attached to his deposition (pp. 250, 251), and which don't 
at all appear in the transcript. How that statement of Mullane got 
into the transcript, we cannot explain without going outside of the 
record. Being in the record, we must take it for what it is worth, 
i. e., an unsworn statement of Dan Mullane, of which a most impor- 
tant portion has been suppressed. So treating it, it appears that 
I)au Mullane was on tlie deck of the Portland at the time of the col- 
lision, and had been for some hours before. He was at the wheel 
from 12 to 2. (P. 232.) A little over an hour after he left the 
wheel he noticed the lights an I said that they were all right and 
burning bright. (P. 215.). He judges that the collision took place 
about half-past three or twenty minutes to four. (P. 247.) Evi- 
dently he must have seen the lights a very few minutes before the 
collision. As to the time of the collision, he is corroborated by 
Donelly. (P. 125.) Peterson. (P. 156.) There was evidently a 
discrepancy between the clock on the barkentine and that on the 
steamer. The witness saw the steamer lights when the steamer was 
eight or nine miles off". (P 233.) At that time he was walking 
athwart the deck load between the fore and main masts, therefore 
with the lights astern of him. (Pp. 245, 246.) When he saw the 
stejimcr liglits he was sulHciently interested to ask the mate if the 
lights were all light, and yet wliile a few steps to the rail of the bar- 
ki utine would Lave put him directly iu front of the red light, he 



PACIFIC COAST STEAMSHIP COMPANY. 21 

swears he had no curiosity to look at the light for himself. (Pp. 
247, 2J:S). Now this was a witness called against us; paid to come 
down from Oregon to testify against us. (P. 254.) And so anxious 
to earu his wages that he swore to a yarn that just previous to the 
collision all hands of the Portland were sent below to pump ship. 
(P. 233.) A yarn so ridiculously absurd and so thoroughly at vari- 
ance with incontrovertible facts, that tlie counsel for claimants in 
their argument in the court below did not allude to it, and the 
judge does not notice it in his opinion. He was a witness against 
us, paid for his testimony, anxious to earn his money, and yet all 
he can be induced to swear to is that the last time he saw the lights 
of the Portland, a very short time previous to the collision, they 
were all right and burning brightly, and that after the steamer was 
sighted, while the questiou of the lights was in his mind, and he 
inquired about them, he had still had not sufficient interest in the 
matter to step a few feet to the rail of the vessel and look at the 
lights for himself. 

Miillane is so manifestly a willing and untruthful witness for the 
claimants, that his refusal to give any testimony in their behalf as 
to the condition of the lights of the Portland at the time of the col- 
lision, can be attributed to no other motive, than a fear engendered 
by his knowledge of the facts that such testimony might very well 
land him in the ])enitentiary. 

The learned Judge of the District Court places his decision on 
the ground that the probabilities are that there was something 
wrong with the lights of the Portland. In arriving at that conclu- 
sion, he argues this way: AH the witnesses on behalf of the Port- 
land testify to the fact that her lights were in proper order and burn- 
ing brightly. The witnesses for claimants testify that the master, 
mate and lookout of the iState of California did not see the lights. 
The master of the State of California was a skillful and experi- 
enced ofiicpr. It appears by his own testimony that the lookout was 
vigilant. Uuder these circumstances, if the lights of the Portland 
were as testified to, the ottioers aud persons in charge of the steamer 
were guilty of gross negligence. It is extremely improbable that 
they were guilty of gros-s negligence, therefore, the Court finds that 
all the witnesses for the Portland are liars, basing his decision 
avowedly on these grounds of ])robability stated by us. 

The legal errors involved in this opinion will be noticed later. 
The decision as to the facts is involved .in hopeless obscurity by 
-reason of the fact that if we assume much less for libellants than the 
learned Judge has assumed in behalf of claimants, a much stronger 
case could be made for libellants than for claimants, in the same 
line of argument. It would proceed thus: Four witnesses on behalf 
of libellants, who were on deck, and must have known the fact, tes- 
tify that the lights of the Portland were in proper order and burn- 
ing brightly at the time of the collision. Three other witnesses who 
saw the ligLits immediately after the collision, when it is not pre- 
tended that any change had been made in them, testify that they 
were then burning brightly. Three witnesses for claimants who 
w^re ou the State of California, testify that they did not see the 
lights of the Portland. The fii'st officer of the Portland was in com- 



22 AMERICAN BARKENTINE tORTLANO VS. 

maud of her deck. He was a skillful and experienced officer. He 
was, in fact, a model seamen. His ability is evidenced by the fact 
that immediately or shortly after the collision, the claimants gave 
him employment on one of their own vessels bound foreign, and 
when he asked to be discharged in a foreign port where his position 
could have been filled at much smaller wages the claimants refused 
to let him go. First officers could be procured at smaller wages, 
but first officers having the skill and ability of Peterson , were not 
easily replaced at any wages. 

This skillful and experienced officer was in command of the deck 
of the Portland, when on the night of the collision, he and the watch 
on deck descried the lights of a steamer approaching him. By the 
statement (unverified) of D miel Mullane, a seaman on the Portland, 
introduced in this case by claimants, it appears that the steamer's 
lights were seen an hour previous to the collision. With an hour's 
time for preparation it is extremely improbable that a skillful seaman, 
such as Peterson, did not have his lights in perfect order. The tes- 
timony is, that sometimes they became smoky or dim, and in such 
instances they were taken down and retrimmed, which operation 
occupied less than three minutes. It would have been very gross 
negligence for the officer of the Portland, sighting an approaching 
steamer, not to look at his lights, and if they were not in proper 
order, to put them in order. It is extremely improbable that an 
officer whose ability is manifested by his employment by both libel- 
lants and claimants, should have been guilty of gross negligence, 
and the conclusion, therefore, follows, that the witnesses for the 
State of California did not tell the truth. 

Each of these lines of argument, that of Judge Hoffman in the 
record, and that we have suggested, is utterly illogical, and of the 
two, the argument of the judge is the more illogical, because he 
sets up a presumption of his own, which has no foundation in any 
testimony, against a presumption of the law. The law is that when 
a collision occurs between a steamer and a sail vessel, the presump- 
tion in the absence of any testimony is that the steamer was in fault. 
Judge Hoffman says that the captain of the steamer was a skillful and 
experienced commander, and, therefore, he presumes he was not in 
fault. There was not a particle of testimony to the fact, on the as- 
sumption of which, Judge Hoffman bases his further assumption on 
which he decides the case. He assumes as a fact that Captain Deb- 
ney was a " skillful and experienced" officer. (P. 269.) And yet 
there is not a scintilla of evidence as to his skill, and the only evi- 
dence as to his " experience " is his own. He testifies he has been 
sixteen years a master of a steamer, but the length of time he has 
been employed does not tend to prove his skill. If the learned 
judge by his mention of the "skill "of Captain Debney meant his skill 
in running down sailing vessels, we will concede, though outside of 
the record, that no master of a steamer in this or any other country 
can compete with his record in that respect. We prefer, however, 
to keep to the record. The claim of the learned Judge of the Dis- 
trict Court, that Debney is a skillful officer finds no verification in 
the record, neither does our admission as to the class of skill in 
which he excels. On the record Debney is a master of a steamer 



PACIFIC COAST STEAMSHIP COMPANY. 23 

ancj has been such for sixteen years. Donelly, master of Portland, 
had nine years' experience as master. (P. 132.) Peterson, first 
officer of Portland, had been a seaman for thirty-one years. (P. 
]46.) It is an utterly fallacious argument, that the fact that a man 
has been employed in a certain capacity for a number of years, raises 
a legal presumption that he was not guilty of negligence in a given 
emergency. It is a presumption that could usually as in this case 
be applied to both sides of a collision case. The learned Judge of 
the District Court applies it only to one side, and so applying it 
argues that witnesses on the other side, who are equally entitled to 
the benefit of such presumption, are necessarily liars, because their 
evidence tends to overcome the presumption which the learned judge, 
without any evidence, precedent or authority, establishes to his own 
satisfaction on behalf of the claimants. 

So far as we are aware, the presumption on which this case was 
decided by the Court below, was never prior to this case announced 
by any Court, English or American. But there is a presumption, 
not alluded to in the opinion of the learned Judge of the District 
Court, which other Courts have not infrequently held to be deter- 
minative of the case. That presumption is stated by the Supreme 
Court of the United States in the following terms. 

" The steamer having the propelling power is under the control 
of her pilot. Her course may be changed and her progress checked 
or arrested. Having this power to avoid a collision with a vessel 
propelled by the wind she is generally chargeable with fault when 
such an occurrence happens. Tlie exception to this ride must be clearly 
estahlifthed b>/ strong circumtsances to excuse the steamer." 
Str. Oregon v. llocca, 13 Howard, 571, bl'A. 

Judge Woodrufif of the Northern District of New York, states 
the rule as follows: " Under the rule which requires a vessel pro- 
pelled by steam to keep out of the way of a sailing vessel, the mere 
proof that she collided with the latter, unaccompanied by circum- 
stances exonerating her, raises a presumption of fault in the former 
ichich slie must overcome or he condemned." 
'J he Wenona, 3 Blatch., 5U0. 

Judge Brown of the Southern District of New York states the 
rule thus: 

" The steamer in this case was bound under Kule 20 to keep out 
of the way of the brig. She must be held answerable for not having 
done so unless she excuses herself by proof of some misconduct 
on the part of the brig, or by proof of such a condition of 
fog, and of such a compliance on her part with all the rules of navi- 
gation as absolve her from fault and reduce the case to one of inevi- 
table accident." 

The Penland, 23 Fed. Kep., 553. 

Judge Drummond of the Northern District of Illinois states the 
rule thus: 

"The rule of law in a case like this is well settled. It was the 
duty of tlif propeller to avoid the schooner and not having done so, 
and tije collision having taken place, it is incumbent on the pro- 
})eller to establish by competent evidence that the collision was 



24 



AMERICAN ISARKEXriNE PORTLAND VS. 



caused in whole or iu part by some fault on the part of the 
schooner. " ^ r ,^ 

The Badger State, 15 Fed. Rep., 346. -^^ ^^--^^ ^fc^^/<^ 

Qaotatious of this nature might be multiplied to a wearisome 
extent. We think we have shown sufficiently that in this case the 
burden of proof was on the claimants to exonerate themselves, a 
point not alluded to by tlie Court below. 

We submit that neither iu the factor in law have they exonerated 
themselves in this case. 

The unim peached and uncontradicted testimony establishes the 
fact that proper lights iu proper condition were exhibited by the 
Portland. 

The witnesses on behalf of claimants say those lights were not 
seen by persons on the State of Califoruia. The learned Judge 
of the Court below in his discussion of the probablities of the case 
assumes that the testimony on behalf of claimants is true, and assum- 
ing it to be true, arrives at the conclusion that the testimony on 
behalf of libellauts was false. The important question in the case 
as to the probabilities of perjury on one side or the other is not 
considered. 

A^ hen we consider the questiou of the probability of perjury on 
one side or the other we find the incontrovertible iacts on which we 
may base a judgment to be as follows: 

The claimants' only witnesses, Debney, Stephens and Doran, were 
each and all in the employ and pay of claimants when they gave 
their testimony. We think it may be accepted as a fact that they 
would not long remain in such employ after giving testimony against 
the claimants. Their bread and butter depended on the evidence 
they should give. Thus the position in which they were i^ held 
out strong inducements to each of those witnesses not only to sup- 
press any truth unfavorable to claimants, but to color facts and even 
invent them in the interests of claimants. In this connection the 
failure of claimants to disclose the name of the man at the wheel 
and the failure to produce either hiiu or the third ofticer of the State 
of California are important circumstances. The fact that this col- 
lision occurred during the confusion of a change of watch on the 
steamer, a portion of the first watch having been relieved and a por- 
tion still waiting for relief, are important circumstances. A very 
few minutes before the collision the third officer had been relieved 
by the second officer; thelookout was waiting for relief and had not yet 
been relieved. The second officer had not been long enough on 
deck for his vigilance, if he was vigilant, to have counted for much. 
According to his own testimony it was two or three minutes after 
four when he came on deck. It is reasonable to suppose that his 
testimony would treat tenderly of his own unininctuality, and that it 
may very well have been live or six minutes after four when he got 
on deck; then he had to get on the bridge, look at the compass, take 
the course from the third officer, after which he commenced to keep 
a bright lookout. Debney says the collision occurred at 4.10. 
Before it came the second officer had not time to scan the horizon 
on one side his vessel. The lookout, Doran, should have been 
relieved at four o'clock and was not relieved at all. It is reasonable 



PACIFIC COAST STEAMSHIP COMPANY. 25 

to suppose that a seaman who has been on deck four hours in a 
a stormy night is ready to turn in at the end of his watch aud that 
after eight bells have struck, he is at least equally vigilant in look- 
ing for the relief as for anythiug else. On this (juestion of veracity 
it is interesting to note the conflicting statements of Debuey and 
Stephens. Debuey says the second otticer saitl he thought it was a 
red light. " I remarked to the second officer it wouKl be impossible 
" to clear her any other way than to get across her bow. I said it is 
" too late to do anything else, we must try aud get across her bow." 
Stephens says that after seeing the red light the captain aud he had 
no conversation whatever. 

The testimony on behalf of the libellants is not as to the principal 
witnesses subject to any such criticism. Of the men on deck of the 
Portland at the time of the collision but one of them at the time 
his testimony was taken was dependent on libellants for employment. 
Our mate, Peterson, immediately after the collision took employ- 
ment under those who were partisans of claimant, and at the time 
his deposition was taken had a berth on the Frederick Billings, a 
ship consigned to Spreckles, and owned by Carlton & Noridge, of 
Kockland, Maine. Andrew Parks, at the time he gave his testimony 
had been five months on the Glenavou, under shipping articles for 
three years. Bressen does not appear to have been in our employ. 
Isaacs was in our employ. The other man on deck at time of col- 
lision w^as, when he testified, in the employ of claimant and testified 
directly against them on the only point in which they hope for suc- 
cess. As to the witnesses who saw the lights of the f'ortland imme- 
diately after the collision, James Daly since the collision Lad been 
in the employ of Benton, Holmes tt Co., but when he gave his tes- 
timony was with other coast sailors on a strike, and unemployed. 
Bennett had been sick and stopping on shore, but would ship on the 
Portland again if he got a chance. Donelly was still in employ of 
libellants as master of the Portland. It will be seen that of the wit- 
nesses, the most important sustained no relation to libellants, such 
as could atibrd any inducement to deflect from the truth to benefit 
libellants. 

III. 

Counsel for the claimant alleged in the Court below that it was 
not proved that the lights were such as required by the United 
States Statutes. That it does not appear that the lights were such 
as to throw the light from right ahead to two points abaft the beam. 
Under the circumstances this would seem to be a very immaterial 
matter. The courses the two vessels were sailing approached each 
other at nearly a right angle, so that any light on the port side of the 
Portland could have been plainly visible, whether or not it illumi- 
nated the entire arc of the circle required by law. Judge Hotfmau 
states the testimony correctly in that respect. He says: '"The 
lights of the barkentine are stated to have been the customary regu- 
lation lights, but neither they nor similar ones are produced in Court 
to establish beyond controversy their sufficiency." We are not 
aware of any rule of law or evidence that required their production. 
Our testimony was that we had the regular regulation lights. What 



26 AMERICAN BARKEXTINE PORTLAND V3. 

they are every seaman knows. Our testimony was not disputed nor 
was there any cross-examiuation of our witnesses on that point. The 
answer of claimant in its specifioation of the negligence of the 
Portland, which it avers caused the collision, does not intimate that 
any fault could be found with the character or rig of the lighting 
apparatus of the Portland, but alleges specifically " the said barken- 
tiue having, some twenty minutes before the collision, removed her 
port side light" (p. 24), an I "in consequence of the imperfect and 
defective manner in which the lights of said hAxV.ewime loereharniiig, 
and did, in consequence of the absence of the port light of said bark- 
entine for some twenty minutes previous to the said collision, and in 
consequence of the failure of said barkentine to exhibit a lighted 
torch." etc., etc. 

We submit that we made all the proof necessary of an uncontested 
point not put in issue by the pleadings. 

Before dismissing this question of lights, we desire to call atten- 
tion to this verv singular and suspicious circumstance. 

The steamer's three witnesses unite in saying that almost imme- 
diately before the collision they saw the red light of the Portland, 
and that it was ' ' very dim." "A dim red light." Now, there is no 
pretense that the red light of the Portland, after the collision, was 
any different from what it was a moment before. By force of the 
collision the bow of the Portland was swung around to the eastward. 
"She Was turned plum around. She slewed around upon the other 
tack." (Donelly, p. 123.) When the steamer struck she swung the 
Portland around. (Bressen, p. 41.) The steamer, after the col- 
lision, kept on her course. There is a rough diagram of the relative 
position of the two vessels just before the collision, in the ti-anscript. 
A glance at it will show that as the barkentine was slewed clear 
around, her port side was in plain view of the steamer after the col- 
lision, and those on board the steamer had ample time and an excel- 
lent opportunity to determine whether her red light was dim or 
otherwise. 

The steamer had over two hundred passengers on board. (Deb- 
rey, p. 61.) It cannot be doubted that a very large number of 
them were on deck immediately after the collision, nor that the en- 
tire crew of the steamer wis arousnd, and yet not a single passenger 
or a single officer, or member of the crew is put on the stand to tes- 
tify as to the appearance of the red light of the Portland after the 
collision. The testimony as to the dimness of the red light is 
entirely inconsistent with the other theory of claimant, that it had 
been taken down, cleaned and replaced immediately prior to the 
collision. 

Counsel for claimant, in the Court below, argued that the barken- 
tine WIS in fault for not exhibiting a toi'ch, which argument the 
learned Judge of tlie Court below does not notice. The counsel 
cited a number of decisions all under the old Statute. (§4234: Re- 
vised Statutes.) The Statute of 1885 (23 Stats, at Large, p. 440, 
Art. 11), changed the law. 

It has been twice held in two cases (The Algiers, 38 Fed., 586; 
The Excelsior, 33 Fed., 5:)5), that the Statute of 1885 governs, and 
that the exhibition of a torch such as counsel say we should have 



PACIFIC COAST STEAMSHIP COMPANy. 27 

exbibited, would have warranted the steamer in believing we were 
going in the same direction she was, and would have been negligence 
OQ our part. A late Eaglish case (1887), holds that the exhibition 
of a white light by a sailing vessel, to a steamer approaching from 
such direction as to place a side light of the sailing vessel in her 
view, is negligence per se. 

The Pdlinarus, L. R. XIII., Probate Div., p. 14. 

IV. 

In the Court below it was argued against us that the Portland 
ported her helm five minutes before the collision. Judge Hoflcnau 
does not notice that point in his decision. 

It is true that our mate, Peterson, so testified. (P. 14S.) Bat 
estimates of time in such cases vary with the most hooest witnesses, 
and the preponderance of the testimony is that the Portland was 
thrown into the wind only at the moment of the collision. Bressen 
did not hear any orders given on the Portland previous to the colli- 
sion. She was close on the wind. Nothing was done. (P. 37.) He 
says she did not lufi" up into the wind before the collision. At the 
time of the collision her sails were all aback. (P. 41.) After sight- 
ing the steamer the barkentine was kept close to the wind. (P. 55.) 

Parks, the man at the wheel, says he got the order to hold the 
barkentine to the wind when the steamer was about 300 yards away. 
(P. 224.) 

Mullane says he could not swear that there was any change of 
course, or whether it was just at the time of the collision, or just a 
moment or two before, that the sails came back. (P. 2y4.) 

Mullane was a very willing witness against us. 

When Capt. Donelly came on deck at the moment of the collision, 
he noticed that the barkentine was hanging up in the wind pretty 
close. (P. 127.) 

It is manifest that if the helm had been put hard a port five min- 
utes previous to the collision, the barkentine in that time would 
have swung clear around on the port tack, and that her bowsprit 
could not have come into collision with the steamer, and that Peter- 
son is mistaken as to time. Doubtless in that trying time, each 
minute seemed to him an age. 

Upon the evidence in the case we submit: 

1st. That under the most unfavorable view of the evidence for 
appellant, the libellants below should have been awarded only a 
moiety of their damages 

2nd. That in a review of the whole evidence, it appears that the 
Portland was not at all in fault, and that the libel should have been 
dismissed by the District Court. 

KespectfuUy submitted, 

E. W. McGRAW, 
CHARLES PAGE, 
Proctors for Appellants 



Original 



No. 1. 



UNITED STATES CIRCUIT COURT OF APPEALS, 



NINTH CIRCUIT. 



AMERICAN BARKENTINE PORTLAND, 

Respondent and Appellant, 

VS. 

PACIFIC COAST STEAMSHIP COMPANY, 

Libellant and Appellee. 



BRIEF FOR APPELLEE. 



Filed December 31, 1891. 

By Clerk. 



GEO. B. MERRILL, 

Proctor for Appellee. 



IN THE UNITED STATES CIRCUIT COURT OF APPEALS, 

NINTH CIRCUIT. 



AMERICAN BARKENTINE PORTLAND, 

Respondent and Appellant, 
vs. 

PACIFIC COAST STEAMSHIP COMPANY, 

Lihellant and Appellee. 



Brief for Appellee. 

This is a case of collision between the barkentine Portland 
and the steamship State of California. The owners of each 
libelled the other, and on the trial, this case was consolidated with 
that of A. M. Simpson et al. vs. The S. S. State of California 
(Trans., p. 11, fol. 27). 

The decision of the District Court was adverse to the owners 
of the Portland, and in favor of those of the State of California. 

An appeal was taken in the case last above entitled to the Cir- 
cuit Court, which affirmed the decision of the District Court, 
dismissing the libel. 

The case at bar remained in abeyance in the District Court 
until the decision of the Circuit Court. Thereafter, the order of 
the District Court, referring tlie question of damages to the 
steamship, was complied with, and thereafter a judgment and 
decree entered in the District Court in favor of the appellee, from 
which judgment and decree the appellant thereafter took steps 
to appeal to this Court. An appeal was also taken by the lihel- 
lant against the steamship, and the case entitled A. M. Simpson 
et al., vs. The S. S. State of California, is number eight on the 
calendar of this Court. 

Appellee, not having had a copy of appellant's Brief, begs 
leave to call to the attention of the Court, the following facts: 

The breeze was three or four knots. (Testimony of Donnelly, 
master of the barkentine. Trans., p. 55, fol. 126. Testimony of 
Petersen, mate, p. 66, fol. 152; p. 70, fol. 161.) 

Six knots (Testimony of Mullane, p. 99, fol. 234.) 



2, AMERICAN BARKENTINE PORTLAND VS. 

Five or six knots (Debney, master of steamship, pp. 27, 33, 
36, fols. 61, 80.) 

About six knots (Stephens, second officer of steamer, p. 40, 
foL 89.) 

Until a few moments l)efore the collision, the Portland was 
heading close to the wind. (Bressen, p. 18, fol. 40. Petersen, p. 
64, fol. 148; p. 74, fol. 171. 

The Portland sails within five points of the wind. (Bressen> 
deposition. Debney, p. 38, fol. 84.) 

Five and a half points, according to Petersen, p. 67, fol. 155. 

Five points from N. E. would be N. by W. 

The steamship was heading E. by N. + N. (Debney, p. 29, 
fol. 05. Stephens, p. 43, fol. 95.) - 

The courses of the two vessels were consequently, until just 
before the collision, almost at right angles. 






The lookout ou the steamer was Doran (p. 43, fols. 96, 97). 

In his usual place, " Three on watch at the time" (Debney, p. 
28, fol. 64). 

There were a lookout, a man in the pilot house, and the mas- 
ter and second and third officers on the bridge (Trans., p. 27, 
fol. 62). 

But the case does not depend upon whether there was, or 
should have been, more than one lookout. 

The master and second officer of the steamer admit that they 
saw the barkentine four or five minutes before the collision, but 
in the absence of any side-light on the sailing vessel or any sig- 
nal, they believed she was going in the same direction as the 
steamer (Trans., p. 31, fol. 70). Another lookout could not have 
enabled them to see the barkentine any more distinctly, or to 
come to any other conclusion. 



PACIFIC COAST STEAMSHIP COMPANY. d 

To have seen her any earlier could not have helped matters. 

No light was seen on the Portland until less than a minute 
before the collision (Stephens, Trans., pp. 39, 40, fol. 88. Doran, 
p. 44, fol. 98). 

Steamer sighted by Portland 15 minutes before collision, as 
per Portland's answer; half an hour before it according to Bussen, 
one of the Portland's watch (p. 15, fol. 35; p. 24, foi. 55); fifteen 
minutes, according to Petersen (p. 63, fol. 147). 

Portland saw steamer's green light 10 minutes afterwards. 

A quarter of 'an hour or t.venty minutes before the collision 
(Bressen, pp. 15, 16, fols. 36, 37, 38). 

Seven or eight minutes before collision (Petersen, p. 70, fol. 
162). 

Petersen then, according to his first statement (his affidavit 
made at Hull, p. 77, fol. 178), says: 

" In a little while the green light belonging to the steamer 
" appeared. I at once went to see if our red light was burning. 
" I did that because I saw that the steamer's course would cross 
" the course of our vessel. 

" When I looked at the red light I saw that it was rather dim, 
" and I therefore took down the light in order to trim it. I 
" took the light down into the cabin and then into the pantry, 
" where I trimmed it. After I had trimmed it I took it on deck, 
" and at once fixed it in his place in the mizzen rigging on the 
" port side." 

This was "seven or eight minutes before the collision." 

If he was gone 5 minutes, he replaced the light only 2 or 
3 minutes before the collision, and that was why the steamer 
saw no light. 

On the steamer the Portland was not descried as a sail until 
from 4 to 5 minutes before the collision. 
Dep. of Brown, questions 24, 51. 
Cross, 1, 3, 55. 
Debney, p. 28, fol. 64. 

All on the steamer thought, from seeing no light, that the 
Portland was going the same way as the steamer (Trans., p. 31, 
fol. 70). 

Brown, ques. 18. 
Debney, p. 29, fol. 66. 
Stephens, p. 41, fol. 91. 

After seeing the Portland's light the only thing to be done, 
in the judgment of the officers, was to attempt to cross her bow 
(Trans., Debney, p. 30, 67; Stephens, p. 40, fol. 89). 



Appellant assigns as errors tliat the evidence discloses: 
1st. That the steamship was wholly at fault for the collision 
and the libel should have been dismissed. 



4 AMERICAN BARKEXTINE PORTLAND VS. 

2d. That the steamship was in fault and the utmost damage 
which should have been allowed was one-half the damages 
suffered by her. 

3d. That the Court erred in allowing interest on damages. 

Errors 1st and 2d can be better treated as one. 

First. 
The statutes of the United States, Sec. 4233, require ves- 
sels in motion to carry "on the starboard side a green light of 
" such a character as to be visible on a dark night, with a clear 
" atmosphere, at a distance of at least two miles, and so con- 
" structed as to show a uniform and unbroken light over an arc 
" of the horizon often points of the compass, and so fixed as to 
" throw the light from right ahead to two points abaft the beam 
" on tlie starboard side." 

On the port side a red light of similar character is required. 
1. No side-lights were seen on the Portland from the steamer 
till one minute or less before the collision. 

Brown, ques. 16, 17, 25, 27, 46, 51; cross, 2, 13. 
Debney, p. 29, fol. 69. 

Doran, p. 45, fol. 98; pp. 39, 40, fol. 88; p. 41, fol. 92. 
When seen the Portland side-light was dim, 
Debney, p. 29, fol. 66. 
Brown, ques. 16, 17, 27. 
Mullane, p. 99, fol. 235. 
Stephens, p. 40, fol. 88. 
Petersen, the mate of the Portland, testified that it was smoky 
(p. 73, fol. 169). 

It was usual to take down the side-lights on the Portland to 
retrim them on the tr'p (Petersen, ]). 76, fol. 175; Mullane, p. 
99. fol. 234 ; pp. Ill, 112, fols. 261-2(53). 

The steward did not replace the old wicks with new ones every 

day — not oftener than once in " two or more weeks" (Bennett, 

cook and steward on the Portland (p. 24, fol. 54; p. 83, fol. 195). 

And upon trimming the lamps he found them " crusted" (p. 

84, fol. 198). 

After the collision he found the side lamps "wet and dirty" 
(p. 85, fol. 201). 

MuDane testified as to the custom on board the Portland of 
trimming the lights. Pie said (p. 99, fol. 234) : 

" Through the night we have trimmed them probably once or 
" twice to my knowledge and sometimes three times." 
Q. Why did you do that? 

A. We had done that because the lights — whether it was on 
account of the lamps or oil, I could not say — but frequently the 
glass of these lights would turn dark. Smoke would get on the 
glass, and it would turn quite dark and would not be visible 
very far. 



PACIFIC COAST STEAMSHIP COMPANY. 5 

Q. Who would generally do that trimmiug of the side-lights 
when you would have them trimmed ? 

A. Any man would be told that would be close handy, any 
of the men for that business. 

Also, p. Ill, fol. 262: 

Q. How many times have you taken them down? 

A. To the best of m}' memory, once or twice a night. * * * 

Q. What other man have you seen taking them down on that 
trip? 

A. I have seen that man. Bob Bressen, take them down, but 
as to others I could not swear or remember. When a man is 
walking on the deck the mate will sing out: " Go and trim that 
light," and a man will go and trim it. There is no notice taken 
of such a thing. * * * 

Q. How did you trim the lights ; what did you do? 

A. Just prick them up, and, if the glass is smoky, wipe it oif. 

Q. Did you not cut the wicks ? 

A. No; I do not remember cutting the wicks. 

Q. Is that the common way to trim lights on board vessels of 
this class? 

A. They are not very particular, not a seaman, when he is 
told to trim a light, whether he cuts the wick or not. * * * 

Q. On those occasions when you trimmed the lights on the 
Portland, how long would you have the lights down? 

A. I should judge for the space of four or five minutes, may 
be; more or less. 

2. There was no proof that the lights of the vessel were such as 
required by the U. S. Statutes. 

Judge Hoffman's Opinion (Trans., p. 115, fol. 271). 

They used wicks " half an inch or a little over " in width 
(Trans., p. 23, fol. 52), though the Statute, Section 4233, requires 
such a light as shall " be visible on a dark night, with a clear 
" atmosphere, at a distance of at least two miles." 

The lights were "three cornered, with reflectors at the back," 
" kind of angular," according to the master of the Portland 
(Donnelly, p. 53, fol. 123; p. 60, fol 138). 

" Two sides closed, one open " (Donnelly, p. 60 fol. 138). 

The aft side is tin, the front glass " (Ibid). 

Reflectors were 6i inches in circumference (diam. 1-3 equals 
2 1-6 in.) (Donnelly, Ibid). 

This description would not necessarily be such as " to throw 
" the light from right ahead to two points abaft the beam." 

3. The course of the barkentine was changed by order of the 
mate five minutes before the collision (Petersen, p. 64, fol. 148. 
Parks, p. 95, fol. 224, Q. 22). 



b AMERICAN BARKENTINE PORTLAND VS. 

This change of course necessarily made her head in nearly 
the same direction as the steamer, and conceal her side-light, if 
she had any in place, and stop her headway (Petersen, Ibid), 
and left her directly in the course of the steamship (Trans., p. 
31, foL 70). 

The Portland, according to her master and men, was sailing 
" 3 or 4 knots." Take the slower pace. At three knots per 
hour she would make one knot in twenty minutes, and one- 
fourth of a knot in five minutes; that is, one-fourth of a knot is 
one-fourth of 2025 yards, or 6075 feet, or 1518f feet. 

" A geographical or nautical mile is 2025 yards, or 6075 feet" 
(Worcester's Dictionary). 

According to Webster's Dictionary it is 6086.7 feet. 

If the vessel had kept her course instead of luffing, she would 
have passed the point of collision by 15l8f feet, or more than six 
times her length in the five minutes. If she had sailed but one 
minute before luffing she would have passed the spot by 303 3-5 
feet, which is probably twice her own length. 

If she was sailing " 5 or 6 knots," as was the opinion of the 
master (p. 30, fol. 67) and officers of the steamer, and of Dan 
Mullane of the Portland, then the sum is still more against her. 
Five knots per hour, one knot in 12 minutes. In five minutes 
5-12 of G075 feet, or 2531^ feet, past the point of collision, or in 
one minute 506 feet, supposing the barkentine to have been 200 
feet long, which she probably was not. 

It was her duty to keep her course (Debney, p. 31, fol. 70; 
Stephens, p. 40, fol. 89), and the changing it five minutes before 
the collision was the sole cause of the collision without any 
reference to lights on her side, or lookout on the steamer, or 
reversing of engines, or anything else. 

4. The Portland showed no torch. Her duty to do so on the 
approach of the steamer is explicit. 

Section 4234 has not been repealed, though a new statute has 
has been passed requiring that " a ship which is being overtaken 
"by another (ship) shall show from her stern to such last-meu- 
" tioned ship a white light or a flare-up light." 
23 U. S. States., p. 440, Art. il. 

After the Portland luffed she was " being overtaken" bj' the 
steamer. The Portland had a torch (Bennett, p. 23, fol. 53, and 
p. 85, fol. 201). 

And a flash light (Donnelly, p. 59, fol. 136.) 

If a torch had been shown, the master and mate of steamer 
could have known the course of the Portland and could have 
avoided her (Debney, p. 30, fol. 68. Stephens, p. 40, fols. 89, 
90). 



PACIFIC COAST STEAMSHIP COMPANY. 7 

If tlie engines were reversed at the speed she was going, she 
could stop in five lengths (Dehney, p. 35, fol. 77). 
Five lengths of 315 feet is 1575 feet. 
Steamer had less than a minute to act in. 

In a minute the steamer moved at 13 miles per hour, 1144 
feet. 

5280x13 is 68,640 

60)68640 



1144 

The steamer then was less than 1144 feet distant from the 
Portland at the moment of discovery that she Avas not sailing in 
the same direction as the steamer, and if she had reversed the 
vessels still must have collided, with probably more disastrous 
cmisequences (Debney, p. 30, fol. 67). 

The steamer had less than a minute to act in. 

It was the opinion of the master and second officer that the 
greatest safety was in trying to get by the bows of the bark (Deb- 
ney, ibid. Stephens, p. 40, fol. 89). 



POINTS AND AUTHORITIES. 

I. 

" Sailing rules and regulations prescribed by law furnish 
" paramount rules of decision whenever they are applicable." 

The City of Washington, 92 U. S., 31. 
" Vessels are bound to use wit^h reasonable promptitude and 
" skill all the means in their power to avoid a threatened col- 
" lision." 

The New Jersey, Olcott, 415, 444. 

The New Champion, Abb. Adm., 206. 

The Neptune, Olcott, 483. 
" The rules of navigation are to be strictly adhered to." 

The Sunnyside, 1 Brown Adm., 250. 

The Gray Eagle, 9 Wall, 505. 

The Pilot, 1 Bliss., 159. 

The Scotland, 1 Ben., 205. 

The C. C. Vanderbilt, Abb. Adm., 361. 

The Oregon vs. Rocca, 18 How., 570. 

The Hopel, W. Rob., 154. 
" They are employed as standards to regulate the apprecia- 
" tion of care, skill and fidelity with which the vessel performs 
" her duties in cases of collision. 

The Santa Claus, Olcott, 435. 

The Hope, 1 W. Rob. 154. 

The Friend, Id., 478. 



AMERICAN BARKENTINE PORTLAND VS. 

" It is not advisable to allow these important regulations to be 
satisfied by eqviivalents, or by anything else than a close and 
literate adherence to what they prescribe." 

The Pennsylvania, 19 Wall., 135. 

The Emperor, Holt's Rule of Rd., 38. 
" Rules of navigation are obligatory upon vessels approaching 
each other from the time the necessity for the caution begins 
and so long as the means and opportunity to avoid the danger 
remain." 

N. Y. etc. S, S. Go. vs. Rumball, 21 How., 372. 

The Dexter, 23 Wall., 60. 

Bentley vs. Coyne, 4 Id., 509. 

The Nicholls, 7 Id., 663. 

The Ericsson, Swabey, 38. 

The Delaware vs. The Osprey,5 Pa. L. J., 172. 

II. 

The Portland showed no red light. 

" Where one vessel carries lights and the other does r.ot, the 

Court will consider the latter the wrong-doer." 

The Delaware vs. The Osprey, 2 Wal. Jr., 268. 

Pope vs. The R. B. Forbes, 1 Cliff"., 342. 
" The exhibition of a light is a precaution so imperiously de- 
manded by prudence, that the neglect is considered as negli- 
■ gence jyer se." 

Simpson vs. Hand, 6 Whart., 311. 

The Columbine, 2 W. Rob., 27. 

Ward vs. Armstrong, 14 111., 283. 

" Pratt on Lights," p. 35.- 

The Gloria Deo, p. 35. 

The Imperatriz, Id. 

The Clarence, Id., p. 36. 

The Neptune, Id., p. 58. 

The Guenare, Id., p. 59. 

The Rob Roy, 3 W. Rob., 191. 

The Juliana, Swabey, 20. 

The Alma, Holt's Ru. of Rd., 259. 

The Parkesburgh, 5 Blatch., 247. 

The Martha Elizabeth, 1 Sawv.. 120. 

The Union, 7 Ben., 296. 

The City of Washington, 6 Ben., 138; 11 Blatch., 487. 
" Where a collision took place between a steamer and a sail- 
' ing vessel on a clear night, and it appeared that the sailing 
' vessel's red light, properly arranged and burning should have 
' been visible to the steamer at least six minutes before the col- 
' lision, and a proper lookout was kept on board the steamer, 
' and the red light was not seen until about a minute and a half 



PACIFIC COAST STEAMSHIP COMPANY. 9 

" before the collision, held to be sufficient proof that the red 
" light was defective." 

The Alaska, 22 Fed. Rep., 548. 
" When traversing waters in the night time where steamers 
" may be expected, a vessel omitting to exhibit her lights ought 
" not to recover against a steamer if the latter had a good look- 
" out." 

The E. B. Forbes, 1 Sprague, 328. 
The N. Y. S. S. Co. vs. Calderwood, 19 How., 241. 
According to the libel of the Portland this was "immediately 
" in the track of coasters, steamers," etc. 

See libel in A. M. Simpson et al. vs. State of California case, 
No. 8, in this Court, Art. 11. 

" When the lights were burning so dimly as not to fulfill the 
" purposes and objects required, they do not constitute a com- 
" pliance with the statute." 

The Continental, 14 Wall, 358. 
Chamberlain vs. Ward, 21 How., 539. 
The Ville de Havre, 7 Ben., 328. 
" So the temporary removal of a light when most needed, is a 
" fault in a sailing vessel wdiich makes her responsible." 
Pope vs. The R. B. Forbes, 1 Cliff., 343. 
Rogers vs. The St. Charles, 19 How., 108. 
" Where a schooner displayed no lights, owing as it was claimed 
" tu unavoidable accident, due to the force of the wind, she was 
" held solely in fault, though the lookout on the other vessel was 
" temporarily absent." (The Wanata, 95 U. S., 5, 600.) 

" The brig was in fault because her starboard light was dim 
" and could not be seen as far as it ought to be seen to satisfy the 
" law." 

The Ariadne, 13 Wall., 475. 
" Signal lights are required by the Act of Congress, in order 
" that they may be seen by an approaching vessel in season, to 
" ascertain and adopt the necessary precautions to prevent a 
" collision with the vessel whose lights are so displaye<l, and when 
" they are extinguished or burning so dimly as not to fulfill the 
" purpose and object for which they are required, they do not and 
" cannot constitute a compliance with the Act of Congress." 
Chamberlain vs. Ward, 11 How. 548. 
" Where several persons on watch, attentive to their duties, can 
" see no lights on an approaching vessel during a considerable 
" period when they ought to be seen, the defect will be ascribed 
" to the other vessel, even when the precise reason why the 
" lights are not seen does not appear ; and especially so when 
" circumstances appear that might have caused obscuration of 
"the lights." 

The Monmouthshire, Dist Ct., New York, 44 Fed. R., 
G97. 



10 AMERICAN HARKENTINK PORTLAND VS. 

*• On a failure to exhibit lights it requires a clear case to satisfy 
" the court that it did not bring about the collision." 
The St. Charles, 19 How., 108. 
The Osprey, 1 Spraoue, 245. 
The Ariadne, 13 Wall., 475. 
The Frank Moffatt, 11 Ch. L. N., 115. 
The Indiana Abb. Adm., 330. 
The Thomas Lee, 38 Law. J. Adm., 37. 
The Victoria, 3 W. Rob., 49. 
The Saxonia, Lush., 410. 
The Olivia, Id., 497. 

III. 

The Portland should have shown a torch, but did not. 
" Collectors, or other chief officers of the customs, shall re- 
" quire all sail vessels to be furnished with proper signal lights, 
" and every such vessel shall, on the approach of any steam vessel 
" during the night time, show a lighted torch upon that point or 
" quarter to which such steam vessel shall be approaching " (Rev. 
Stats. U. S., Sec. 4234). 

The Saratoga, 37 Fed. Rep., 121. 
The Algiers, 21 Id., 343. 
" The failure of a sailing vessel to show a lighted torch on. the 
" approach of a steam vessel, as required by Rev. Stat. U. S., 
" Section 4234, can be excused only by proof that the torch, if 
" shown, could not possibly be seen, by reason of fog or other 
" cause." 

The Oregon, 27 Fed. Rep., 75. 
The Pennsylvania, 12 Id., 914. 
A bark held liable for not displaying a torch on her bow. 

The Caro, 23 Fed. R., 734. 
" The lights of a schooner were not seen by a steamer until 
" within 100 yards, when it was too late to avoid collision. 

" Held, that the schooner was at fault for not displaying a 
" torch." (And the steamer for not having a proper lookout.) 
The I. C. Harris, 29 Fed. Rep., 92G. 
Steamer and schooner sailing in convergent courses. Schoon- 
er's side-lights so placed as not to be seen on steamer. Steam- 
er's lights seen for a long time on* the schooner, " but no means 
" taken to attract her attention, and a torch kept for that very 
" purpose not even lighted. The schooner was not noticed un- 
" til too late to avoid the collision. The steamer having proved 
" vigilance, negligence could not be inferred from the failure 
" to see a light, and the schooner was in positive fault in failing 
" to light and exhibit the torch, when she knew the steamer was 
" approaching on a course crossing her own." 
■ The Algiers, 28 Fed. Rep., 240. 



PACIFIC COAST STEAMSHIP COMl'ANY. 11 

" The fact that the side-lights were burning and could have 
*•' been seen by a careful lookout from the steamer, will not ex- 
" cuse the neglect of the sailing vessel to exhibit a torch which 
" might have prevented the collision." 
The Algiers, 21 Fed. Rep., 343. 
The Frank P. Lee, 30 Id., 277; aff'd. 34 Id., 480. 
The Titan, 23 Id., 413. 
The Ror..an, 12 Id., 219. 

" Section 4234 of the Rev. Stats., requiring sailing vessels to 
" exhibit a torch light on the approach of a steam vessel at 
" night, does not apply to foreign vessels in American waters; 
" but good seamanship requires that such sail vessel shall ex- 
" hibit such light under such circumstances, whether in motion 
" or at anchor, and a failure to do so in case of a collision may 
" constitute contributory negligence on her part." 
The Oregon, 14 Sawy., 440. 

Rev. Stat., Sec. 4234, 'is not confined to cases where the steamer 
is approaching the sail vessel from astern. 

(Conn.) Brainard vs. The Narragansett, 3 Fed. Rep., 251. 

In the latter case, the Court says, p. 255: 

" AVithout undertaking to find affirmativelj'- why the lights were 
" not visible, I find simply that the steamer was in the exercise 
" of due vigilance, and that the lights w^ere not capable of being 
" seen. * * * 

" The schooner had a torch which was ready for use, and 
''which was kept in a convenient place in the cabin. The mate 
" had been recently employed and did not know that there was a 
" torch on board. It was not used. There w^as time enough to 
" have lighted and shown it to the advancing steamer after the 
" mate saw the approaching danger. If it had been shown, the 
" collision would have been avoided. The captain and mate 
" were both of opinion, and this, they state, is the prevalent 
" opinion and practice of the officers of coasting vessels, that a 
" torch is to be used only when a steamer is approaching a sail- 
" ing vessel from astern. 

" This construction of Section 4234, Rev. Stat., is not war- 
" ranted by its language, and it is not recognized in the decis- 
" ions upon the subject." 

Held, that the statutory precautions to avoid a collision had 
not been taken b}' the schooner. 

The case of The Algiers, Vol. 38, Fed. Rep., p. 526, cited by 
thelibellants on behalf of the Portland in the Court below, has 
no bearing upon this case. 

That touches the display of a " flare-up light" to a vessel 
overtaking her. 

It interprets the Art. 11, p. 440, U. S. Rev. Stat., Vol. 23. 

It does not refer to the obligation to display a torch to an 
approaching steamer imposed b}' Sec. 4234. 



12 AMERICAN BAKKENTINE PORTLAND VS. 

The Art. II prescribes a rule for a ship being overtakeu by a 
ship. 

Section 4234 prescribes a rule for a sailing vessel being ap- 
proached by a steamer. 

A " flare-up" is not a " torch." 

An approaching steamer is not an overtaking ship; and Art. 
ll, p. 440, Vol. 23, U. S. Statutes, does not repeal Section 4234 
Rev. Stats., but provides a nevv and different rule for new and 
different circumstances. 

IV. 

It was not the duty of the steamer to reduce her speed when 
there was no apparent danger. 

Art. 16 of the rules of 1804, for avoiding collisions, as to re- 
ducing speed when approaching another vessel, " does not con- 
template a case where a collision is the result of sheer negligence 
and disobedience of well known rules; but applies to cases where, 
supposing the parties intend to perform, and do reasonably per- 
form, their respective duties, the emergency is such that there 
is still danger that a collision ni-av occur. 

The Free State, 91 U. S., 2U0. 

The Scotia, 14 Wall., 170. 
" For a schooner not to show a torchlight, or take some ade- 
" quate precaution to give notice of her dangerous proximity to 
" an approaching steam vessel, is negligence, under the general 
" rules of the sea. And a steam vessel is not bound to slacken 
" her speed until there is apparent danger, but has a right to pre- 
" sume that every vessel approached will give such notice as the 
" local usages of the place, or general rules of the sea, require." 

Kennedy vs. The Samaritan, 2 Fed. Rep., p. 911. 
The not slackening of speed by the vessel bound to observe 
such rule is error, but a vessel is excused for not slowing 
when the lights displayed indicated that it was not safe to 
do so. 

The Free State, 1 Brown Adm., 262. 

The Rob Roy, 3 W. Rob., 190. 
Some affirmative evidence of danger must be present to 
impose the duty of decreasing speed. 

The Free State, 1 Brown Adm. 266, 91 U. S., 200. 

The New York, 18 How., 223. 

McCreadv vs. Goldsmith, Id., 89. 

The St. Charles, 19 Id., 108. 

The City of Paris, 9 Wall., 634. 

The Bay State, Abb. Adm., 235. 

The Electra, Newb., 225. 

The Buffiilo, Id., 115. 

The James Watt, 2 W. Rob., 271. 



PACIFIC COAST STEAMSHIP COMPANY. 13 

The Birkenhead, Id., 75. 

The Esther vs. The Concordia, Holt's Rule of Rd., 142. 

The Louisiana, 21 How. 1 ; 2 Ben., 177. 

Nelson vs. Leland, 22 How., 48. 
'* Was, then, the Scotia in fault ? If she was, the fault must 
"have been either that she did not change her helm sooner, or 
" that she ported, or that she was unjustifiably late in slacking her 
" speed and reversing her engines. No other fault is attributed to 
" her. We have alread}' said that she was not bound to take any 
" step to avoid a collision until danger of collision should have 
" been apprehended, and we think there was no reason for appre- 
" hension until the ship's light was seen closing in upon her. * 
" * * It is not the law that a steamer must change her 
" course, or must slacken her speed the instant she comes in 
"sight of another vessel's light, no matter in what direction it 
" may be. With such a rule navigation cannot be conducted. 
" Nor is such a rule necessary to safety. It is therefore no fault 
"that, seeing the ship's light off her port bow, a|)parently at a 
" distance of several miles, the Scotia continued on her course 
" without slackening her speed, until that light began to close in 
" upon her." 

The Scotia, 14 Wall., 181. 

V. 

The Portland was wholly at fault in changing her course, and 
thereby the steamship was placed in extremis, and could not 
have avoided the accident. 

"The duty of the sailing vessel, even with the wind free to 
" hold her course, is imperative." 

The Sunnvside, 1 Brown Adm., 247. 
The Scotia, 5 Blatchf., 227. 
. The Continental, 8 Id., 3. 
Bently vs. Coyne, 4 Wall., 509. 
Wheeler vs. The Eastern States, 2 Curt., 141. 
The Favorite, 8 Blatchf., 539. 
Taylor vs. Harwood, Taney, 437. 
The City of Paris, 9 Wall., 634. 
The Fannie, 11 Id., 238. 
The AVesley Seymour, 7 Ben., 539. 
She has no right to deviate (1), except it be necessary to avoid 
immediate danger arising from natural causes (2), or when there 
is an immediate danger of collision (3). 

(1) The Fashion, Newb., 8. 
The Lion, 1 Sprague, 40. 
The (Jarroll, 8 Wall., 302. 
The Johnson, 9 Wall., 146. 

(2) The John L. Hasbrouck, 93 U. S., 405. 



14 AMERICAN BARKENTINH; PORTLAND VS. 

The C. C. Vaiulerbilt, Abb. Adm., 364. 
Tlie Narragansett, Oleott, 388. 
The Neptune, Id., 483. 

(3) The Monticello vs. Mollison, 17 How., 152. 
Peck vs. Sanderson, Id., 178. 
Baker vs. City of New York, 1 Cliff., 75. 
The Andrade, 2 Ben., 472; 13 Wall., 475. 
" But she has no right to deviate because she might thereby 
" avoid a collision." 

Wakefield vs. The Governor, 1 Cliff., 93. 
The Suunyside, 1 Brown Adm., 246. 
The Wm. Young, Oleott, 38. 
The R. B. Forbes, 1 Sprague, 328. 
The Free State, 1 Brown Adm., 251; 91 U. S , 200. 
The Carroll, 8 Wall., 302. 
The Corsica, 9 Wall., 630. 
The Ligo, 2 Hagg. Adm., 356. 
The Catherine of Dover, Id., 145. 
''■ The apprehension of danger does not determine her duties." 

The U. S. Grant, 6 Ben., 465. 
" A vessel whose dutj'^ it is to keep her course should not an- 
" ticipate the motions of the other vessel, and give way — the 
" certainty which results from adhesion to general rules is abso- 
" lately essential to the safety of navigation." 
The Superior, 6 Notes of C, 607. 
The Test, 5 Id., 276. 
The George, Id., 371. 
The Vivid, 7 Id., 127. 
The Immoganda Sara Clasina, 7 Id., 582. 
The Clement, 2 Curt., 363. 
The Gitana, Law Rep., 2 Adm. & Ec, 350. 
The Ariadne, 13 Wall., 475. 
" A vessel bound to hold her course must not change because 
" the other vessel takes no steps to get out of her way." 
The U. S. Grant, 6 Ben., 465. 
The Britannia, 34 Fed. Rep., 546. 
" Thfe rule requiring a steamer to keep out of the way of a sail- 
" ing vessel is eciually imperative upon the latter to keep her 
" course, and where, by her unnecessary deviation therefrom, a 
" collision is rendered unavoidable, the steamer is not liable 
" therefor." 

The Illinois, 103 U. S., 298. 
On page 299 the Court says : " Had the schooner kept her 
" course for a minute or two longer, there is scarcely a doubt 
" that the steamer would have got by in safety. It was clearly 
" a fault therefore for her to change her course unless there was 
" a necessity for it." 

In The Britannia, 3d Fed. Rep., p. 550, the Court says : 



r.VClFIC COAST STEAMSHIP COMPAXY. 15 

*' In order to prevent the coufusiou and fatal results that 
" would arise from conflicting orders, if both vessels were to 
" undertake the duty of avoiding each other, the rules of navi- 
" gation impose upon one the duty of taking active measures to 
"'keep out of the way,' and require the other to 'keep her 
" course.' " 

And on p. 552 the Court adds : "The phrase ' shall keep her 
" course ' in rule 22 must be construed in its ordinary nautical 
" sense ; and when a steamer stops and reverses until she is 
" still in the water, she certainly does not 'keep her course,' in 
"the nautical sense, or in any sense. She then has ' no course ' 
" at all." 

Note, p. 552. " But the duty of one vessel to ' keep her 
"course ' is not intended by the rules as a privilege conferred, 
"but as an obligation imposed, in order to enable the other 
"vessel with certainty to keep out of the way." And on p. 554 : 
"The situation doubtless required firmness and nerve, but these 
" qualities are indispensable to navigation. Sailing vessels are 
" often put in the same doubt and uncertainty by steamers ; but 
" the rule that requires them to hold their course and not 
" execute a contrary maneuver is never relaxed except when the 
" peril is imminent." 

A schooner was held at fault for luffing when a ferry-boat was 
approaching. 

The Jay Gould, 7 Ben., 566. 
The Mignon, 35 Fed. Rep., 319. 
And for luffing and missing stays and falling across a tug and 
tow. 

The Hibernia, 5 Ben., 353. 

VI. 

The lookout on the steamer was sufficient. 

Whether it was or not is a matter of fact for the Court to 
determine from the testimony. 

There is no Statute which requires more than one man to 
stand as lookout, nor any inspector's rule authorized by Statute. 

If there is any inspector's rule requiring it, knowledge of such 
rule must be brought home to the vessel, by compliance on the 
part of the inspectors with the provision of the Statute which 
gives them power to make the rule. No proof thereof has been 
made. 

The presumption of knowledge of the law does not include 
such rules until after notice. 

" Where there were three experienced mariners on the poop- 
" deck, with an unobstructed view all round, the absence of a 
" lookout will not beheld to contribute to the collision." 
The Ping-On vs. Blethen, 11 Fed. Rep., 607. 



16 AMERICAN BARKENTIXE PORTLAND VS. 

But the question of lookout disappears when the vessel is ad- 
mitted to have been seen by the officers of the stearaer; if the 
red light was not visible to several persons gazing towards the 
barkentine until a minute before the collision, the number of 
lookouts is immaterial. 

" Where one vessel, owing to the darkness of the night, in 
" in the direction she was sailing could not see a vessel until 
" close to her, but the other from her direction could see the 
" the first vessel at a much greater distance, the first vessel was 
" not deemed in fault." 

The Elizabeth English, 7 Blatchf., 180. 
" The absence of a lookout is immaterial when it does not ap- 
" pear that the collision could in any way be attributed to his 
" absence." 

Mever's Excursion & Navigation Co. vs. The Emma Kate 

Ross, 41 Fed. Rep., 826. 
The Morning Light, 2 Wall., 550. 
The Annie Lindsay, 104 U. S., 185, 191. 
The George Murray, 22 Fed. Rep., 117. 

Overtaking Vessels. 

If two vessels are going the way and one is a faster sailer than 
the other and overtakes her, the faster is bound to keep out of 
the way of the other; but if the night is so dark that the vessel 
ahead cannot be seen, the vessel astern cannot be held to this 
rule. 

The Morning Light, 2 Wall., 550. 

The leading vessel is not justified in changing her course so 
as to embarrass or throw herself across the track of the other. 
The W. H. Clark, 5 Biss., 295. 

We submit that the conclusion from the facts and the law can 
be onlj' that the barkentine Portland was at fault, because : 

1. She showed no starboard side-light. 

2. She showed no torch. 

3. She changed her course contrary to dutj^ and law. 

The steamship was not al fault. She had a sufficient lookout; 
she saw the Portland, but was misled by the latter's failure to 
show her starboard light until too late to prevent the collision. 

A decree of the Circuit Court will not be reversed by the 
Supreme Court upon a mere doubt produced by conflicting testi- 
mony. 

The Marcellus, 1 Black., 414. 

The Water Witch, Id., 494. 

The Potomac, Id., 581. 

Phila. W. & B. R. R. Co. vs. Towboat Co., 23 How., 209. 

Morewood vs. Enequist, Id., 491. 



PACIFIC COAST STEAMSHIP COxMPANY. 17 

Newell vs. Norton, o Wall., 257. 

The Hypodame, 6 Id., 217. 

Mephams vs. Bressel, 9 Id., 370. 

The Quickstep, Id., GG5. 

The S. B. Wheeler, 20 Id., 385. 
Nor will a decree of the District Court, affirmed by the Circuit 
Court, be reversed upon a mere difference of opiniou as to the 
force of such testimony. 

The Juniata, 93 U. S., 337. 
Where there is a concurrence in the opinion of the Circuit 
and District Courts in a case of collision, and testimony is not 
wanting to support their decision, mere doubts will not be suffi- 
cient to reverse the decree. 

The Hypodame, 6 Wall., 217. 

The Grace Girdler, 7 Id., 196. 

The Commerce, 16 Id., 33. 

Second. 

The third error assigned by appellant is that the Court erred 
in allowing interest on damages. 

The interest allowed by the Commissioner is set forth in his 
report (Trans., p. 118, fol. 279), "from date of payments." 

The claimant of the Portland filed, in accordance with the 
rule of the District Court under Rule of Dec. I, 1847, exceptions 
to the report of the Commissioner (Trans., p. 119, fol. 478-9), 
but included no exception to the item of interest. 

If the report of the Commissioner was incorrect, exception 
should have been taken to it in the Court below. 

In the case of Kinsman vs. Parkhurst. 18 How., 289, the Court 
said (p. 53) ; " It is also insisted that the Court below erred in 
" decreeing the rents and pi'ofits, etc. 

The short answer to each of these objections is, that no such 
" exceptions were taken to the report of the master, and are 
•' therefore not properly before us. That was the time and place 
" to have presented these questions, and the omission precludes 
"any question here on the matter." 

Hudgins vs. Kemp, 20 How., 45. 

" On an appeal from the decree of the Circuit Court of Mary- 
"land, on a libel on a bottomry bond, originally filed in the 
" District Court, it appeared that Commissioners appointed by the 
" Circuit Court had reported that a certain sum, being a part of 
"the amount of the bond, was absolutely necessary for the ship, 
"as expenses and repairs in the common course of her employ- 
" raent. No exception was taken to this report by either party 
" in the Circuit Court, and it was accordingly confirmed by that 



18 AMERICAN BARKENTINE PORTLAND VS. 

" Court. The report is not open for revision in this Court, there 
" being nothing on its face impeaching its correctness." 
Virgin vs. Vyphius, 8 Pet., 538. 

In the case of the ship Potomac (2 Black, 581), it was held 
that " the claimant of a vessel libeled for repairs cannot be per- 
" mitted in this Court to contest the amount of libellant's claim, 
" except in so far as specific objections appear by the record to 
" have been taken to it in the Court below." 

This is in direct violation of the practice in the Supreme 
Court of the United States as set forth in Rule 21, Sec. 2 (108 
U. S., 585), the last paragraph of which reads as follows : 
" When the error alleged is to a ruling upon the report of a 
" master, the specification shall state the exception to the report 
" and the action of the Court upon it." 

Third. 

This is not a case where the loss should be divided. 

The loss should not be divided in a case were the steamer was 
not in fault, and where the schooner was in fault, as is admitted 
here. 

" Where thelibellant was guilty of gross fault, and that of the 
•' respondent is in any degree doubtful, the damages will not be 
" divided." 

The Sunnyside, 1 Brown Adm., 247; 91 U. S., 208. 
The Europa, Brown & L., 87. 

In the case of Barque Delawai'e vs. Steamer Osprey, 2 Wall. Jr., 
268, it was held, that " although the Court cannot establish a 
" rule to bind vessels navigating the high seas to carry signal 
" lights, yet where one vessel does so and another does not, the 
" Court, in a case of collision, will go some way to treat the 
" dark boat as the wrong-doer." 

In that case the Court said (p. 277): 

" The difference between them, was however, in this, that the 
" steamer exhibiting signal lights, her position and course could 
'' be well understood by the barque; but the barque exhibiting 
" no light, and having been last seen when heading to steamer's 
" wake, the steamer had no means of ascertaining the barque's 
" apj^roach, and no cause for apprehending a collision. A light 
" was shown on board the barque very shortly before the collision 
" took place. But whether it was or was not exhibited early 
" enough to make it strictlj^ possible for the steamer to avert the 
•' accident is not with me an important inquiry. The steamer 
" had her full complement of lights, and it was impossible that 
" the barque could have incurred any hazard at all, if she had been 
" content to hold her course, instead of luffing up as she did 
" across the steamer's bows, obviously for the purpose of keep- 
" iug well up to windward. Had she had lights, she might have 



PACIFIC COAST stp:amshii' company. 19 

" done so with safety. Having none, she vohintarily took the 
" risk of the collision, and must reap its fruits." 

The latter case is singularly like the case at bar, and is a 
precedent in favor of appellee. • 

Fourth. 

The allowance of interest and costs in admiralty causes rests 
in the discretion of the Court below and will not be disturbed 
on nppeal. 

The Maggie J. Smith, 123 U. S., 349. 
On damages sustained hj collision interest should be allowed 
on the sums paid for the repairs. 
The Baltic, 3 Ben., 195. 
The Baltic, Id., 197. 

Adams vs. The Ocean Queen, 5 Blatchf., 493. 
The appellee respectfully submits that the decree of the Court 
below should be affirmed, with interest and costs. 

GEO. B. MERRILL, 

Proctor for Appellee. 



U. S. Circuit Court of Appeala, Ninth Circuit. 
January 19, 1892. 



Nos. 1 & 8. 



The Steamship State of California, \ 
A. M. Simpson, et Al., 

Libellants. 
va. 

The Barkentixe Portland— TheI Filed Jan. 25, 1892. 
Pacific Coast Steamship Companv, I 
Libellant. ' 

Before Judges Deady, Hawley & Hanford. 
Mr. E. W. McGraw, for the " Portland." 
Mr. George B. Merrill, for the " State of California." 
(I). Collision — Duty of Steamer on Meeting Sail Vessel. 

On the morning of April 7tli, 18S6, the Steamship " State of Califoraia," was 
bound for San Francisco, and when a short distance outside the Heads, sighted 
the Barkentine " Portland " two points off her starboard bow, and near two miles 
distant, bound for the same place. No lights were observed on the barkentine, 
and the master of the steamer supposing that the courses of the two vessels were 
nearly parallel, neither reversed his engine nor slackened his speed, but steamed 
on his course at the rate of 13 knots an hour. The night was dark but clear, 
and the courses of the vessels were in fact nearly at a right angle. The barken- 
tine was on the starboard tack, sailing closeliauled upon the wind, and continued 
her course until the steamer was within 300 yards of her, and apparently about 
to strike her amidships, when she was luffed into the wind, thus slackening her 
speed, and turning her bow to starboard and away from the steamer. The latter, 
without changing her course or abating her speed, undertook to steam across the 
bow of the barkentine, when they collided, the bow of the barkentine coming 
in contact with the steamer just abaft her beam, and both were seriously injured. 
The lights were burning on the barkentine, but the proof was not satisfactory that 
they were sufficient, and such as required by law. Held, that the steamer was in 
fault on sighting the sail, in not reversing her engines or slackening her speed, 
until the course of tlie barkentine could be certainly ascertained; and then it was 
her duty to keep out of the way, and therefore the damage occasioned by the 
collision ought to be divided. 

(2). Flake-up When Shown by Sail Vessel. 

Section 4234, of the Revised Statutes requiring a sail vessel to show a torch on 
the quarter, on which a steam vessel is approaching her, is superseded by the 
Article 11, of the " International Regulations, " so far as tlie high seas and the 
coast waters are concerned. 

(3). Findings of Fact by the Circuit Court. 

The law limiting the Supreme Court, on an appeal in admiralty, to a review of 
the findings of the Circuit Court, on questions of law merely, does not apply to 
this Court. 



2 ST£A>a>Hip State of Cauforxl\ vs. Babkextixe Portland. 

Deady, J., delivered the opinioii of the Court 

About 4 o'clock, on the morning of April 7th, 1886. a collision oc- 
carred between the Steam-ship " State of California" and the Barken- 
tine " Portland," a short dLstance outside the Heads of the San Fran- 
cisco Bar. 

The night was dark and clear, and the lights on Point Bcmita, 
Pcrint Reyes and Fort Point were plainly visible. 

Both vessels were bound in, and each was aware of her position. 
The wind was northeasterly. The course of the barkentine was 
about north by west and she was close-hauled on her starboard 
tack. The course of the steamer was about east by north. From 
this it will be seen that the vesseU were approachiug each other at 
nearly a light angle. The steamer while attempting t<i cross the 
bows of the barkentine collided with her abaft her beam on the star- 
board si<le. The barkentine was cut down from the bowsprit, below 
the water. In a few minutes after she was struck, the vessel was 
water-logged, but being loaded with lumber she kept afloat and was 
towed in" 

The steamer had a hole stove in her side eight or ten feet in 
diameter, but by shifting the passengers and cargo, which eonsiste*! 
largely of wheat and flour, to port, she managed to get to her 
dock without injury thereto. 

On July 26, 1886, A. M. Simpson and others, the owners of the 
barkentine libeled the steamer on account of said collision : and on 
September 13, 1886, the owner of the steamer, the Pa?itic Coast 
Steamship Company, libeled the barkentine for the same cause. On 
December 3, 1889, the libel in case of the steamer was dismissed and 
the claimant had a decree for cosU*. and in tiie case of the barkentine 
the libellant had a decree for the damage sutiered b^' the collision> 
and referring the case to a Commis-sioner to find the amount thereof" 
On March 31, 1891, the Commissioner reported the damage to the 
steamer at $8,880.30, and on July 23. 1891. the libellant ha«l a decree 
for said damages and for demurrage $3,076.05. with interest tliereon. 
amounting in all to the sum of $15.16o.65, with costs. 

On December, 11, 1»89, the Ubellant appealer! from the decree «f 
the District Court dismissing the libel in the case of the steamer and 
on July 20, 1891, the Circuit Court affinne'l said decree and dis- 
missed the libel. The material findings of the Circuit Court are to 
the effect, that the lights on the steamer were in good condition. an«l 
were -seen bv the men on the barkentine half an hour l>efore the col- 



Stkamship State of Camkohn'ia >•$. Barkkntine Portland. 3 

lision : that the red light of the latter was not displayed or was 
burning dimly : that the sail of the " Portland" was seen by the 
master and lookout of the steamer 4 or 5 niinute'? before the 
collision, while she was about a mile and a half distant, and "the 
absence of the red light led the master of the steamer to believe that 
the two vessels were .sailing on nearly the same course, and therefore 
he did not reverse his engine or slacken speed ;" that the steamer 
was running at the rate of 13 knots an hour, wa^ Slo feet in length, 
and could have been stopped in 5 times her length : that if, on first 
sighting the '" Portland," the engines of the " California" had been re- 
vei'sed the collision would not have occurred, but she neither reversed 
her engines, slackened her speed nor changed her course. That the 
• Portland'" had a torch on board, but did not exhibit it, nor was it 
satisfactorily shown that the lights of the "Portland" were such as 
were required by the U. S. Statutes, and that about 5 minutes before 
the collision the "Portland" was, by order of the mate, luffed into the 
wind, " thereby arresting her headway and throwing her more into 
the track of the steamer," and concluded that the collision resulted 
from the neglect of the " Portland" to show a proper and sufficient 
red light. 

Upon these findings the steamer must be held in serious fault, in 
not reversing her engines or slackening her speed when the lookout 
reported " a sail on the starboard bow." The ma-ster hail no right to 
suppose that the vessel was on the same course witli the steamer, and 
therefore there was no danger of collision. Seeing no light at all, he 
had no right to indulge in any supposition. It was his duty to stop 
at once or slacken his speed, so as to simply hold his way, until the 
couree of the barkeutine was ascertained. 

The Herman, 4 Blat.ch, 441: N. Y. v. Va. S. S. Co., 19 How., 245; 
Louisiana v. Fisher, 21 How., 5 : The Illinois, o Blatch., 25S ; Ping 
on V. Blethen, 11 Fed. Rep., 607 : The Ancon, 8 Saw., 334. 

The InteiTiational Regulations are also decisive of the question. 
Articles 17 and Is are as follows: 

" Article 17. — If two ships, one of which is a sailing ship, and the 
other a steamship, are proceeding in such direction, as to involve a 
risk of collision, the steamship shall keep out of the way of the sail- 
ing ship. 

Article IS. — Every steamship when approaching another ship, so 
as to involve risk of collision, shall slacken her speed, or stop and re- 
veise, if necessary." 23 Stat, 441. 



4 Steamship State of California vs. Baekentine Portland. 

The barkentine was some two points off the starboard bow of the 
steamer, and might well be, as she was sailing on a course convergent 
to that of the steamer, in which case the lisk of collision was cei tainlj^ 
involved. 

It is claimed by the appellant that on the facts found, there should, 
have been a division of the damages on the ground of the manifest 
fault of the steamer. 

It is proper to state here, that we do not consider the Act of 
February 15, 1875, (Sup. Rev. Stat., 135), which makes the finding of 
facts of the Circuit Court conclusive upon the Supreme Court, ap- 
plicable to an appeal from a Circuit Court to this Court. 

The Act organizing this Court (Sec. 6), gives it "appellate juris- 
diction to i-eview by appeal," all cases in admiralty — to review them 
by appeal, unqualiHedl}^ in which the case is tried de novo, on the 
evidence, and not upon mere question of law. 

The question is only matt^rial in the case of a decree given in a 
Circuit Court, on appeal fi-oin a District Court, prior to March 3 
1891, the date of the Act oiganizing this Court ; as since that time 
no appeal is allowed from the District to the Circuit Court (Sec. 4). 
So the provision in Sec. 11 of the Act concerning " methods and 
systems of review," is prospective and does not apply to appeals in 
admiralty from decrees pronounced under the old law. 

It was found in the Circuit Court that the barkentine did not dis- 
play a torch light, as provided in Section 4234, of the Revised 
Statutes, which requires such light to be shown by a sailing vessel, 
on the approach of a steam vessel, on whatever quarter it might be 
approaching. But this Siiction is superseded, as to vessels on the 
high seas and coast waters of the United States, by Article 11 of the 
" International Regulations," which reads: "A ship which is being 
overtaken by another, shall siiow from her stern to such last men- 
tioned ship, a wliite light or a fiare-up light." The Algiers, 38 Fed. 
Rep., 58(3. The Excelsior, 33 Fed. Rep., 555. 

The barkentine was in the coast waters of the United States, and 
was not being overtaken by the steamer. 

The case of the barkentine comes here direct from the District 
Court on the evidence, which makes a case more favorable for her 
than the findings in the Circuit Court. 

For instance, the Circuit Court found that five minutes before the 
collision, the bai'kentine was luffed up into the wind, whereby her 



Stkamshii' State of California cs. Bakkextixe Portland. 5 

headway was stopped and she was thrown more into the track of the 
steamer. 

The mate, Peterson, testities tliat about five minutes before the 
collision, he gave the or'ler to put the vessel close to the wind. 

It is possible that he is mistaken about the time, and that the order 
was given le.ss than five minutes before theeollision. It was given when 
the steamship was about three hundred yards distant from the 
barkentine and apparently about to strike her amidships. But the 
longer liefore the collision, the better for the ca.se of the barkentine. 
The putting her more against the wind had a tendency to stop her 
headway and probably did reduce her speed to two or three miles an 
hour. At the moment of the collision her sails were aback or 
fluttering. This slackening of speed gave the steamer more time to 
cross her bows and reduce the force of the impact, when they came 
together. And so far from the luffing throwing the barkentine more 
into the track of the steamer, the contrary is true. Her bow swung 
to the starboard, to the right, and if she had swung'half round in the 
.same direction she would have been parallel to the steamer and no 
collision would have occurred. It was the general duty of the 
barkentine to hold her course. But when the mate saw the steamer 
was crossing her bow and likel}^ to collide with the barkentine, it 
was his right and duty, to do whatever .seemed most likely to avert 
or diminish the impending calamity. Arts. 23, 24, 23 Stat., 442. 

Notwithstanding, the steamer forged ahead on her course, at the 
rate of 13 knots an hour, when a slight deviation to port would have 
sent her clear of the barkentine. and prevented the collision. 

As to the lights on the barkentine, the weight of the testimony is 
to the etlect that they were in place and burning. But the testimony 
is not satisfactory as to their condition or quality. The libellants 
were practically challenged, on the hearing, to bring the red light 
into Court for inspection. They failed to do so, and the reasonable 
inference is that it w^ould have been found insufficient. 

The case is one of mutual fault and the damages must be divided, 
liy requiring half the difference of the re.spective losses, if any, to be 
paid by the one sustaining the lesser loss to the other. The Oregon, 
14 Saw., 466. 

The decision of this Couit is. that in the case of the Steamer " State 
of California," A. M. Simpson and others, libellants, that the decree 
of the C'ircuit Court is reversed, and the cause is remanded to that 
Couit for farther proceedings in accordance with this opinion ; and 



6 Steamship State of California vs. Barkentine Portland. 

in the case of the barkentiue, The Pacific Coast Steamship Com- 
pany, libellants, the decree of the District Court is reversed, and 
the cause is remanded to that Court with direction to dismiss the 
libel and enter a decree in favor of the claimants for costs. 



Januar}^ 25, 1892. 

Motion of the lihellant in the case of the Portland for a modifica- 
tion of the decree. 

Deady, J. 

The order for a decree is modified as follows : — The decree of this 
Court will be that the decrees in the case of the " Portland" and the 
" Steamship State of California" are both reversed, and that they 
both be remanded to the District Court and there consolidated and 
tried as one case, upon the question of the amount of damage sus- 
tained by the " Portland" and '' State of California," respectively, by 
reason of the collision ; and tliat if either is shown to have sustained 
more damage than the other, the lesser sum with the costs of li- 
bellant in such case shall be deducted from the greater sum, with 
costs, and the party sustaining the greater loss shall have a decree 
for the one-half of the remainder. 



TRANSCRIPT OF RECORD. 



United States Circuit Court of Appeals, 
FOR THE NINTH CIRCUIT. 

OCTOBER TERM, 1891 

NoQS{.. 



NORTHERN PACIFIC RAILROAD COMPANY, APPELLANT, 

vs. 
MARIA AMACKER, ct al., RESPONDENTS. 



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES, 
FOR THE DISTRICT OF MONTANA. 



=^ 



32 



FILED^^:^ f^A /. / 1891. 



United States Circuit Court of Appeals, 

FOR THE NINTH CIRCUIT. 

OGTOBRR T^RRM, 1891. 

NO 



NORTHERN PACIFIC RAILROAD COMPANY, APPELLANT, 

-OS. 

MARIA AMACKER, et al., RESPONDENTS. 



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES, FOR 
THE DISTRICT OF MONTANA. 



INDEX. 



Original. Print. 

Citation 1-2 i 

Return of service by F. M. Dudley 3 2 

Return of service by Marshal 4 2 

Caption 5 3 

Bill of Complaint 0- 1 7 4 

Chancery Subpoena 18-19 12 

Return of Marshal 1 9-20 i 3 

Apppearance of defendants A. J. Steele, W. H. Little, 
. H. B. Reed, F. H. Pings, Geo. S. Howell, and H. 

R. Buck, as solicitor for said defendants 20 13 

Appearance of M. G. Cohen, and of McConnell and 

Clayberg, as solicitors for said defendant 20 14 

Appearance of defendants M. and J. J. Amacker, and 

of Massena Bullard, as their solicitor 20 14 

Appearance of defendant, The City of Helena, and of 

R. B. Smith, as its solicitor 21 14 

Demurrer of defendants A. J. Steele, ct al 22-23 i 5 

Order setting demurrer for argument 24 16 

Hearing of demurrer commenced 24 16 

Demurrer of defendant. City of Helena 25-26 16 

Hearing of demurrer continued and submitted 26 17 

Demurrer of defendants, M. and J. J. Amacker 27-28 17-18 

Petition for order of publication order 29-31 18-20 

Order for publication 32-33 20-2 1 

Return of Marshal 33-34 21-22 



II INDEX. 

Proof of publication 34 22 

Appearance of defendants, G.S. Howell, G. F. Dibert 35 22-23 
Appearance of defendants, F. H. Pings and Joseph 

Jordan 35 23 

Appearance of defendant, John Blank 35 23 

Order allowing E. A. Carleton to be included as a de- 
fendant in demurrer filed and argued 36 23 

Opinion on demurrer 37-41 24-28 

Order for decree 42 29 

Final decree 42 29 

Petition for allowance of appeal 44 

Assignment of errors 46-50 30-33 

Order allowing appeal and fixing amount of bond .... 51 33 

Appeal bond and approval 52-53 34-35 

Clerk's certificate 54 35 



NORTHERN PACIFIC RAILROAD COMPANY VS. MARIA AMACKER, ET AL. I 

1 United States Circuit Court, For the District of Montana. 

Northern Pacific Railroad Company, Appellant, ^ 

7'S. 

Maria Amacker, John Amacker, her husband. Walter H. Lit- 
tle, Alexander J. Steele, Allen Wheeler, Herbert B. 
Reed, M. J. Cohen, John McNulty, A. J. M. Hosom, Mary 
M. Johnson, George S. Howell, The City of Helena, 
Evans A. Carleton, Lewis H. Warren, Cameron C. Wylie, 
Louis Archimbault, Theodore Holland, Frank H. Pings, 
John Doe, Richard Roe, et a/.. Respondents. 

CITATION. 

United States of America, to Maria Amacker, John J. Amacker, 
her husband, Walter H. Little, Alexander J. Steele, Allen 
Wheeler, Herbert B. Reed, M. G. Cohen, John McNulty, A. J. 
M. Hosom, Mary M. Johnson, George S. Howell, Frank H. 
Pings, George Gotthardt, John Blank, Joseph Jordan, George 
Dibert, Fisk J. Shaffer, Phillip H. Swan, Lewis H. Graves, 
Georgia C. Young, Fred E. Tibbets, G. Dana Lewis, Edward 
Williams, John A. Gockstetter, Hiram C. Birch, City of Helena, 
Evans A. Carleton, Lewis H. Warren, Cameron C. Wylie, Lewis 
Archimbault, Theodore Holland, John Doe, Richard Roe, ct al. 

You are hereby notified that in a certain cause in equity, in the 
United States Circuit Court, for the district of Montana, wherein 
the said Northern Pacific Railroad Company is complainant, and 
Maria Amacker, John J. Amacker, her husband, Walter H. Little, 
Alexander J. Steele, Allan Wheeler, Herbert B. Reed, M. J. Cohen, 
John McNulty, A. J. M. Hosom, Mary M. Johnson, George S. 
Howell, The City of Helena, Evans A. Carleton, Lewis H. War- 
ren, Cameron C. Wylie, Louis Archimbault, Theodore Holland, 
Frank H. Pings, John Doe, Richard Roe, et al., are defendants, the 
said Northern Pacific Railroad Company, complainant therein, has 
prayed an appeal to the United States Circuit Court of Ap- 

2 peals, for the Ninth Circuit, from the decree in said cause 
entered, and that said appeal has been allowed. 

Wherefore you are hereby cited and admonished to be and ap- 
pear in the United States Circuit Court of Appeals, for the Ninth 
Circuit, at the City of San Francisco, California, thirty days from and 
after the day this citation bears date, to show cause, if an}- there 
be, why the decree appealed from should not be reversed and set 
aside, and relief be granted to said appellant as by it prayed, and as 
to justice and equity may appertain. 

Witness the Honorable Melville W. Fuller, Chief Justice of the 
Supreme Court of the United States, this loth day of August, in 
the year of our Lord, eighteen hundred and ninety-one. 

HIRAM KNOWLES, 
U. S. District Judge. 



2 northern pacific railroad company vs. 

State of Montana, ( 

County of Lewis and Clarke f 

F. M. Dudley, being duly sworn, makes oath and says that he is 
of the age of 21 years and upwards; that on the loth day of August, 

A. D., 1 891, in the city of Helena, in said count}-, he served the 
foregoing citation upon McConnell & Clayberg, solicitors fur the 
said defendant, M. G. Cohen, at their office in the said city, by de- 
livering to and leaving with the clerk of said McConnell & Clayberg 
who was then and there in charge of said office, said McConnell & 
Clayberg being then absent therefrom, a true and correct copy of 
said citation. 

Affiant further says that on said loth day of August, A. D. , 1891, 
he served said citation upon the said defendants A. J. Steele, Fisk 
J. Shaffer, Phillip H. Swan, Lewis H. Graves, Georgia C. Young, 
Fred E. Tibbetts, G. Dana Lewis, Edward Williams, John A. 
Gockstetter, Hiram C. Burch, Allan Wheeler, Walter H. Little, 
Evans A. Carleton, George S. Howell, Frank Pings, and H. B. 
Reed, by delivering to and leaving with the clerk of Thomas Bach, 
solicitor for said defendants, at the office of said Bach, in 

3 the city of Helena, between the hours of 3 and 4 o'clock, 
p. m. of said day, a true and correct copy of said citation, 

the said clerk being then and there in charge of the said office, said 
Bach being then absent therefrom. Affiant further says that at the 
time of the commencement of this action and at the time Horace 
R. Buck entered an appearance and filed a demurrer therein for said 
defendants, the said Thomas Bach and Horace R. Buck were co- 
partners, practicing law in the said city of Helena; that thereafter 
the said Horace R. Buck was appointed Judge of the First Judicial 
District for the State of Montana; that said copartnership was then, 
as affiant is informed and believes, dissolved, and that said Thomas 
Bach remained in charge of said cause as solicitor for and on behalf 
of said defendants, and still so remains. 

Affiant further says that on said loth day of August, A. D., 1891. 
he served said citation upon the said defendant, the City of 
Helena, by delivering to and leaving with A. J. Craven, a true and 
correct copy thereof; that said Craven is City Attorney and Solici- 
tor of said city of Helena, as successor in office to the said Robert 

B. Smith, who filed an appearance in said foregoing cause as so- 
licitor for said city of Helena. 

F. M. DUDLEY. 
Subscribed and sworn to before me this i 3th day of August, A. 
D. 1 89 1. 

GEORGE W. SPROULE, 
Clerk of United States Circuit Court, Ninth Circuit, District of 
Montana. 

Helena, Montana, August 13, 1891. 
I, Wm. F. Furay, United States Marshal within and for the District 
of Montana, certify that I received the attached citation on August 



MAKiA amackp:k, et al. 3 

lo, A. D. 1 89 1, and personally served the same on Joseph Jordon, 

F. H. Pings, Geo. F. Dibert and George Howell, at their respective 

residences, near the city of Helena, in the County of Lewis 

4 and Clarke, District of Montana, by delivering to and leav- 
ing with each of the parties before named, a true copy of 

the original, on the iithday of August, nSgi. 

I also certify that on the 12th day of August, A. D. 1891, I made 
service on George Gotthardt and John Blank, at their respective 
residences, near the city of Helena, County of Lewis and Clarke, 
District of Montana, by delivering to and leaving with Mrs. Got- 
thardt, the wife of George Gotthardt, and Mrs. Blank, the wife of 
John Blank, they each then and there accepting service in the 
names of their respective husbands. 

Witness my hand at the city of Helena, County of Lewis and 
Clarke, District of Montana, this 13th day of August, 1891. 

WM. F. FURAY, 
U. S. Marshal. District of Montana. 

In the Circuit Court of the United States, Ninth Circuit, in and 
for the District of Montana. 

Northern Pacific Railroad Company, Complainant, 

7>S. 

Maria Amacker, John J. Amacker, her husband, Walter H. 

Little, Alexander J. Steele, Allan Wheeler, Herbert 

B. Reed, M. G. Cohen, John McNulty, A. J. M. Hosom, 

5 Mary M. Johnson and George S. Howell, all of the 
city of Helena, State of Montana, and citizens of the 

State of Montana; The City of Helena, a municipal corpo- 
ration organized, created by and existing under and by virtue 
of an act of the Legislature of the Territory of Montana, now 
State of Montana, approved February 22nd, 1881, entitled 
"An act to incorporate the City of Helena," and the acts 

amendatory thereof, Evans A. Carleton, of State of 

and a citizen of said State of , Lewis H. Warren, of 

the county of Lewis and Clarke, State of Montana, and a citi- 
zen of the State of Montana, Cameron C. Wylie of of 

the State of Montana, and a citizen of the said State of Mon- 
tana, Louis Archimbault, of Smelter, State of Montana, The- 
odore Holland, of the city of Denver, State of Colorado, and 
a citizen of the said State of Colorado, Frank H. Pings, of 
the city of Helena, Montana, a citizen of the State of Montana, 
and John Doe, Richard Roe, John Smith, James Murphy, 
W. Allen, R. B. Herbert, J. M. Mary, C. A. Evans, W. 
H. Lewis, Wylie C. Cameron, H. Theodore, and many 
others, whose true names, residence and citizenship are to 
complainant unknown. Defendants. 

Be it i-emembered, that on the 4th day of September, 1890, com- 



4 NORTHERN PACIFIC RAILROAD COMPANY VS. 

plainant filed its bill of complaint in this action, which said bill of 

complaint is in words and figures following, to-wit: 

To the Honorable Judges of the Circuit Court of the United States 

for the District of Montana: 

The "Northern Pacific Railroad Company," a corporation created 
by and organized and existing under an act of Congress of the Unit- 
ed States, approved July 2d, 1864, entitled "An Act Granting 
Lands to Aid in the Construction of a Railroad and Telegraph Line 
from Lake Superior to Puget Sound, on the Pacific Coast, by the 
Northern Route," and those certain acts and joint resolutions sup- 
plemental thereto and amendatory thereof, brings this, its bill, 
against Maria Amacker, John J. Amacker, herhusband, Walter H. 
Little, Alexander J. Steele, Allan Wheeler, Herbert B. Reed, M. 
G. Cohen, John McNulty, A. J. M. Hosom, Mary M. Johnson, and 
George S. Howell, all of the city of Helena, State of Montana, 
and citizens of the State of Montana; the Citj' of Helena, a munic- 
ipal corporation organized, created by and existing under and by 
virtue of an act of the Legislature of the Territory of Montana, now 
State of Montana, approved February 22d, 1881, entitled "An act 
to incorporate the city of Helena " and the acts amendatory 

6 thereof, Evans A. Carleton, of State of and a 

citizen of said State of ; Lewis H. Warren, of the 

County of Lewis and Clarke, State of Montana, and a citizen of the 

State of Montana; Cameron C. Wylie, of of the State 

of Montana. and a citizen of the said State of 
Montana; Louis Archimbault, of Smelter, State of Mon- 
tana; Theodore Holland, of the City of Denver, State of Colorado, 
and a citizen of said State of Colorado; Frank H. Pings, 
of the City of Helena, Montana, a citizen of the State of Montana, 
and John Doe, Richard Roe, John Smith, James Murphy, W. 
Allen, R. B. Herbert, J. M. Mary, C. A. Evans, W. H. Lewis, 
Wylie C. Cameron, H. Theodore, and many others, whose true 
names, residence and citizenship are to complainant unknown. 

And thereupon your orator complains and says: That by the 
terms of said act of Congress, approved July 2, 1864, your orator 
was authorized and empowered to Jay out, locate, construct, fur- 
nish, maintain and enjoy a continuous railroad and telegraph line, 
with the appurtenances, namely: Beginning at a point on Lake Su- 
perior, in the State of Minnesota or Wisconsin, thence westerly by 
the most eligible railroad route, as should be determined bv your 
orator, within the territory of the United States, on a line north of 
the 45th degree of latitude, to some point on Puget Sound; and 
there was granted to your orator, by the Congress of the United 
States of America, every alternate section of public land, not min- 
eral, designated by odd numbers, to the amount of twenty alternate 
sections (per mile on each side of said railroad line, as your orator 
might adopt, through the territories of the United States and ten alter- 
nate sections) of land per mile on each side of said railroad whenever 



MARIA AMACKER, ET AL. 5 

it passed through any State, and whenever on the Hne thereof the 
United States had full title, not reserved, sold, granted, or other- 
wise appropriated, and free from pre-emption or other claims or 
rights at the time the line of said road should be definitely fixed 
and a plat thereof tiled in the office of the Commissioner of the 
General Land Office. 

And your orator further shows: That, by the fourth section of 
said act, the said Congress further provided that whenever 

7 your orator should have twenty-five consecutive miles of any 
portion of its said railroad and telegraph line ready for the 

service contemplated, the President of the United States should ap- 
point three commissioners to examine the same; and if it should 
appear that twenty-five consecutive miles of said road and tele- 
graph line had been completed, in a good, substantial and work- 
manlike manner, as in all other respects required by said act, the 
commissioners should so report to the President of the United 
States, and patents for the lands as aforesaid should be issued to 
your orator, confirming to your orator the right and title to said 
lands, situate opposite to and co-terminus with said completed 
section of said road. And from time to time, whenever twenty-five 
consecutive miles should be constructed and completed and in read- 
iness as aforesaid, and verified by said commissioners to the Presi- 
dent of the United States, then patents should be issued to your 
orator, conveying the additional sections of land as aforesaid, and 
so on, as fast as every twenty-five miles of said road should be 
completed as aforesaid. 

And your orator further shows: That it was provided, in and by 
section six of the said act, that the President of the United States 
should cause the lands to be surveyed for forty miles in width on 
both sides of the entire line of said road, after the general route 
thereof was fixed, and as fast as should be required by the construc- 
tion of said railroad; and that the odd sections of land thereby 
granted should not be liable to sale or entry or pre-emption, before 
or after they were surveyed, except by your orator, as provided in 
said act. 

And your orator further shows that your orator duly accepted 

the terms, conditions. and impositions of said act, and signified such 

acceptance in writing, under the corporate seal of your ora- 

8 tor, executed pursuant to the direction of its Board of Di- 
rectors first . had and obtained, and within two years after 

the passage of said act, to-wit. December 29, 1864, served such ac- 
ceptance on the President of the United States. 

And your orator further shows that the general route of said rail- 
road, extending through the Territory of Montana, was duly fixed 
by your orator February 2T, 1872, and that the following described 
land, to-wit: West half of northwest quarter, southeast quarter of 
northwest quarter, and southwest quarter of northeast quarter of 
Section 17, Township 10, North of Range 3, West Principal Merid- 



6 NORTHERN PACIFIC RAILROAD COMPANY VS. 

ian of Montana, was on and within forty miles of the general route 
of your orator's railroad so fixed as aforesaid; and that said land 
was, on said February 21, 1872, public land, to which the United 
States had full title, not reserved, sold, granted, or otherwise ap- 
propriated, and free from pre-emption or other claims or rights. 

And your orator further shows that on or about the months of 
February and March, 1868, all the lands in said Township 10, 
North of Range 3, West of Principal Meridian of Montana, were 
surveyed by and under the direction of the United States Surveyor- 
General for the District of Montana, and that thereafter, to-wit, on 
or about the day of 18 the United States Sur- 
veyor-General made return of the official plat of said survey and 
filed the same in the office of the Commissioner of the General 
Land Office at Washington, D. C., and that thereafter, to-wit, on 
the twenty-third. day of July, 1868, the same was regularly filed in 
the United States District land office at Helena, Montana, said 
lands being then, and at all times hereinafter mentioned, in said 
United States land district of Helena. That by said survey the 
description of all lands in said Township was ascertained, and the 
character thereof determined, and the said west half of northwest 
quarter, southeast quarter of northwest quarter and southwest quar- 
ter of northeast quarter of Section 17, Township and Range 
aforesaid was thereby determined to be agricultural land, and not 
mineral, in character; that the plats filed as aforesaid so reported 
and showed said described lands, and the said determination, report 
and showing have since continued to remain in full force and effect. 

And your orator further shows: That at the date of the passage 
of said act, July 2, 1864, and at the date of fixing said line of gen- 
eral route of your orator's railroad, to-wit, February 21, 1872, no 
part of the said west half of the northwest quarter, southeast 
quarter of northwest quarter and southwest quarter of northeast 
quarter of section 17, Township and Range aforesaid, was known 
mineral land, and that in truth and in fact said land was not 
9 . mineral land, nor was any part of said last described land 
withm any exceptions from said grant. 

And your orator further shows: That thereafter, to-wit, July 6, 
1882, your orator definitely fixed the line of its said railroad, ex- 
tending opposite to and past said west half of northwest quarter, 
southeast quarter of northwest quarter and southwest quarter of 
northeast quarter of section 17, Township and Range aforesaid, 
and filed a plat thereof in the office of the Commissioner of the 
General Land Office. And your orator further shows: That said 
land is on and within forty miles of your orator's said line of rail- 
road so definitely fixed as aforesaid. 

And your orator further shows. That thereafter your orator duly 
constructed and completed that portion of your orator's railroad and 
telegraph line extending on, over and along the line of definite 
location of your orator's said railroad so fixed as aforesaid; and 



MAKIA AMACKEK, ET AL. J 

thereupon the President of the United States appointed three com- 
missioners to examine the same; and it appearing to the said com- 
missioners that that portion of your orator's said raih^oad and tele- 
graph Hne had been completed in a good, substantial and work- 
manlike manner, as in all respects required by said act of July 2, 
1864, and the acts supplementary thereto and amendatory thereof, 
the said commissioners so reported to the President of the United 
States, and said President of the United States duly accepted your 
orator's said line of railroad and telegraph so constructed and com- 
pleted as aforesaid. 

And your orator further shows, That at the date of so definitely 
locating your orator's said line of railroad, and of the filing of a plat 
thereof in the office of the Commissioner of the General Land Office, 
to-wit, July 6, 1882, the said west half of northwest quarter, south- 
east quarter of northwest quarter and southwest quarter of north- 
east quarter of section 17, Township 10 north of Range 3 west of 
Principal Meridian of Montana, situate in the County of Lewis and 
Clarke, State of Montana, was not known to be mineral land, and 
was, in fact and in truth, agricultural land, and that said lands were 
on said day public lands to which the United States had full title, 
net reserved, sold, granted or otherwise appropriated, and free 
from pre-emption or other claims or rights, except as herein stated. 

And your orator further shows, That May 13, 1868, one A. J. 
Wetter filed in said United States District Land Office for 
to the District of Helena, a cerlain declaratory statement un- 
der the provisions of the laws of the United States, granting 
pre-emption rights to settlers on the public domain, wherein and 
whereby he made pre-emption claim to said northwest quarter of 
northwest quarter of said Section 17, with other tracts of land, and 
alleged that he settled upon said lands,- said May 13, 1868. 

But your orator further shows that said Wetter did not, on said 
day or at any time, make settlement upon said land, described in 
said declaratory statement, or any portion thereof, and did not at 
any time inhabit or improve the same, or erect a dwelling thereon. 

And your orator further shows, that, October 5, 1868, one Wil- 
liam M. Scott, filed in said United States Land Office for the Dis- 
trict of Helena, a declaratory statement under the provisions of the 
laws of the United States, granting pre-emption rights to settlers 
on the public domain, wherein and whereby he made pre-emption 
claim to said south half of the northwest quarter of said section 17, 
together with other tracts of lands, and alleged that he settled upon 
said land, said October 5, 1868. But your orator further shows 
that said Scott did not, on said day or at any time, make settlement 
upon said lands described in said declaratory statement, or any 
portion therof, and did not, at any time, inhabit or improve the 
same, or erect a dwelling thereon. 

And your orator further shows that November 27, 1808, one Jer- 
ome S. Click, filed in the United States District Land Office for the 



8 NORTHERN PACIFIC RAILROAD COMPANY VS. 

said District of Helena, a declaratory statement under the 
provisions of the laws of the United States, granting pre-emption 
rights to settlers on the public domain, wherein and whereby he al- 
leged settlement as of said Nov. 27, 1868, upon, and made pre- 
emption claim to the west half of the southeast quarter, the south- 
west quarter of the northeast quarter, and the southeast quarter of 
the soutwest quarter of Section 1 7 aforesaid. But your orator fur- 
ther shows that said Glick did not, on said da}- or at any 
1 1 time, make settlement upon said land or any portion thereof, 

and did not at any time inhabit or improve the same, or 
erect a dwelling thereon. 

And your orator further shows that December 13th, 1869. one 
Robert C. Wallace, filed in the United States district land office 
for the said District of Helena, a declaratory statement under the 
provisions of the laws of the United States, granting pre-emption 
rights to settlers on the public domain, wherein and whereby he 
made pre-emption claim to the southwest quarter of the northeast 
quarter of said Section 17. together with other tracts of land, and 
alleged that he settled on said land, said December 13, 1869; but 
your orator further shows that said Wallace did not, on said day, or 
at any time, make settlement upon said land described in said de- 
claratorv statement, or any portion thereof, and did not at any time 
inhabit or improve the same, or erect a dwelling thereon. 

And vour orator further shows, that no notice of the fixing of 
the general route of your orator's said line of railroad was received 
at the said United States district land office at Helena, until May 
6, 1872; that on said May 6, 1872, the Register and Receiver of the 
said United States district land office, received from the Commis- 
sioner of the General land office, a diagram showing that portion of 
the line of general route of your orators said railroad, extending 
through said United States land district, together with an order in- 
structing said district land officers to withhold from sale, pre-emp- 
tion or other entr}, all public lands m odd numbered sections with- 
in fortv miles on each side of the line of general route of your ora- 
tor's said railroad. 

And your orator further shows that prior to the receipt of said dia- 
gram and order of withdrawal at said United States district land 
office at Helena, to-wit. May 3rd, 1872. one William H. McLean 
dulv applied, under the act of Congress approved May 20, 1862, 
entitled "An act to secure homesteads to actual settlers on the pub- 
lic domain " and the acts amendatory thereof, to enter the said 
west half of the northwest quarter, southeast quarter of northwest 
quarter and southwest quarter of the northeast quarter of 
said Section 17. township and range aforesaid; and was then and 
there permitted by the register and receiver of the said United 
States District land office at Helena, Montana, to enter said land 
under and in accordance with the provisions of said act of Congress 
approved Mav 20, 1862; and thereuf)on said McLean did make an 



MARIA AMACKER, ET AL. 9 

affidavit as required by said section 2290 of the revised stat- 

12 utes of the United States, and filed the same with the regis- 
ter of the said United States district land office, and paid 

to the receiver of said land office the sum of ten dollars. 

But your orator further shows that the said McLean did not 
then or at any time reside upon or cultivate said land for the term 
of five years, or for an} term whatsoever. 

And your orator further shows that prior to July 3rd, 1879, to-vvit. 

day of 1879. the register and receiver of said United 

States district land office at Helena, pursuant to a circular of in- 
structions issued by the commissioner of the General Land Office 
under the directions of the Secretary of the Interior, December 20, 
1873, duly notified said McLean to appear and show cause within 
thirty days why his said entry should not be cancelled for failure to 
make proof of compliance with the provisions of said homestead 
law, as required by said law; and said McLean having failed to re- 
spond to said notice, the commissioner of the General Land Office 
thereafter, to-wit, on or about September 11, 1879, cancelled said 
entry, and said McLean did not then, or at any time appeal from 
said action. 

And your orator further shows that thereafter, to-wit, on or 
about August 20. 1882, William H. McLean died, leaving a widow, 
one Maria McLean. 

And your orator further shows, that thereafter, to-wit, on or 

about March 15, 1883, said Maria McLean made application to the 

United States to purchase said lands under the provisions of 

13 the act of Congress, approved July 15, 1880, and was on the 
day of 188 — , allowed by the commissioner of the 

General Land Office to so purchase said lands. That thereafter, 
your orator duly appealed from such action by said commissioner 
to the Secretary of the Interior, and thereafter to-wit, on or about 
March 28, 1887, the said Secretary of the Interior wrongfullv held 
that said land was e.xcepted from the grant to your orator and 
allowed the application of said Maria McLean to purchase said land; 
and thereafter, to-wit, on or about June 17, 1887, the United States 
issued to said Maria McLean its patent for said lands. 

And your orator further shows. That after the death of said Mc- 
Lean, as aforesaid, his widow, the said Maria McLean, married the 
said defendant John J. Amacker; that your orator is not informed 
and cannot show whether said marriage was before or after the issu- 
ance of said patent, and is not informed and cannot show whether 
said patent was i.ssued to the said Maria McLean under the name 
of Maria McLean or Maria Amacker; but 50ur orator does further 
show that the said defendant Maria Amacker and said Maria Mc- 
Lean, is the same person. 

And your orator further shows that there was no entries, filings 
upon, or applications to make entry of said land in said United 
States District Land Office at Helena. Montana, other than as 



lO NORTHERN PACIFIC RAILROAD COMPANY VS. 

herein set forth; and that said land was, July 6. r8S2, vacant, un- 
occupied and unimproved. 

And your orator further shows, that on or about the i6th da)- of 

May, 1889, the said defendants Maria Amacker and John J. 

Amacker, her husband, made, executed and delivered to the 

14 said defendant Walter H. Little, a certain instrument in 
writing purporting to convey to sai d Little a portion of said 

lands so patented to said Maria Amacker. 

That thereafter, to-wit, August 6, i88g, the said defendants Wal- 
ter H. Little, Maria Amacker and Alexander J. Steele, having 
theretofore caused said land so patented to said Maria Amacker to 
be surveyed into townsite, with blocks, lots, streets and alleys, filed 
a plat of said townsite, in the office of the count}' recorder for the 
county of Lewis and Clarke, as an addition to the city of Helena; 
and dedicated said streets and alleys to the public use, said addition 
to be known as McLean Park Addition to Helena. 

And your orator further shows upon its information and belief, 
that the said defendants Maria Amacker, Walter H. Little and Alex- 
ander J. Steele, have, since the filing of said plat, executed and de- 
livered to others of said defendants, certain instruments in writing 
purporting to convey to said defendants some right, title, or inter- 
est in and to certain lots and blocks in said McLean Park; and that 
each of said defendants now claim some right, title or interest in 
and to certain blocks or lots in said McLean Park Addition, under 
and by virtue of said instruments. 

That said defendants Maria Amacker, John J. Amacker, ^^'alter 
H. Little and Alexander J. Steele, still claim some right, title and 
interest in and to said McLean Park Addition. 

That said defendants do not, nor do any of them, claim any 
right, title or interest in or to said McLean Park Addition, or any 
portion thereof, other than such right, title or interest as they 
claim through mesne conveyances, or directly under said United 
States patent issued to Maria McLean as aforesaid. 

And your orator further shows that the said defendant George S. 
Howell is in possession of, and claims the title to lots i to 6, inclu- 
sive, in block 32, as shown on the said plat of said McLean Park 
Addition, and that said defendant Frank H. Pings is in pos- 

15 session of, and claims title to, lots 23 and 24, in block 30, 
as shown on said plat of McLean Park Addition. 

But your orator further shows that the remainder of said west 
half of the northwest quarter, southeast quarter of northwest quar- 
ter and southwest quarter of the northeast quarter, is vacant, unim- 
proved land, and that your orator is seized thereof in fee simple. 

And your orator further shows upon its information and tjelief, 
that there are more than one hundred and fifty persons claiming 
some right, title or interest in and to lots and blocks in said McLean 
Park Addition under said patent so issued to said Maria Amacker, as 
aforesaid, through mesne conveyances, and instruments in writing 



MARIA AMACKEK, ET AL. I I 

from said Maria Amacker and John J. Amacker and their grantees. 
That the greater number of said instruments have not been recorded 
in the office of the Recorder of said Lewis and Clark County, Mon- 
tana, and your orator has no information and cannot show to your 
Honors names and residences of said persons; and such persons can- 
not without manifest inconvenience and oppressive delays, be all 
brought before your Honors in this said action. 

And your orator further shows that said premises are of great val- 
ue, to-wit, of the value of thirty thousand dollars, and that your or- 
ator, ever since the said July 6, 1882, has been and now is the own- 
er of said premises, and the whole and every part thereof. 

And your orator further shows that the said patent so issued to 
the said defendant Maria Amacker, as aforesaid, was issued without 
authority of law, and that said patent and the said pretended claims 
of the said defendants thereunder constitute and are a cloud upon 
the title of your orator; and that by reason of the issuance of said 
patent as aforesaid, the United States refuses to issue to your orator 
patent for said lands. 

And your orator further shows, that by reason of the great number 
of said defendants it will be necessary to bring a multiplicity of suits 
in order to maintain the rights of your orator in and to the 
16 said premises unless your Honors shall permit and allow the 

parties defendant herein to defend for the interests of those 
claimants of portions of said premises, who are not herein expressl}' 
named as defendants, as well as for their own rights; and your ora- 
tor further shows that those defendants who are named herein and 
e.xpressly made parties to this action, fairly represent all of the in- 
terests in and to said premises, or any part thereof, which are held 
or claimed to be adverse to the right and title of your orator therein. 

For as much as your orator can have no adequate relief except 
in this court, and to the end, therefore, that the defendants maj', if 
they can show why your orator should not have the relief hereby 
prayed, and may make a full disclosure and discovery of all the 
matters aforesaid, and according to the best and utmost of their re- 
membrance, knowledge, information and belief, full, true, direct and 
perfect answer make to the matters hereinbefore stated and charged; 
l)ut not under oath, an answer under oath being hereby expressl}- 
waived. 

And your orator prays that your Honors may decree that the said 
defendants, and each of them, have no estate or interest whatsoev- 
er in or to said lands or premises; and that the title of your orator 
is good and valid, and that the said defendants and each of them, 
be forever enjoined and restrained from asserting any claim whatso- 
ever in and to said lands and premises adverse to your orator, and 
for such other and further relief as the equity of the case may re- 
quire, and to your Honors may seem meet. 

May it please your Honors to grant unto your orator a writ of 
subpoena of the United States of America, directed to the said Ma- 



12 . NORTHERN PACIFIC RAILROAD COMPANY VS. 

ria Amacker, John J. Amacker, Walter H. Little, Alexander J. 
Steele, Allan Wheeler, Herbert B. Reed, M. G. Cohen, John Mc- 
Nulty, A. J. M. Hosom, Mary M. Johnson, and George S. Howell, 

The City of Helena, Evans A. Carleton, Lewis H. Warren, 
17 Cameron C. Wylie, Louis Archimbault, Theodore Holland and 

Frank H. Pings, John Doe, Richard Roe, John Smith, James 
Murphy, W. Allen, R. B. Herbert, J. M. Mary, C. A. Evans, W. H. 
Lewis, Wylie C. Cameron, H. Theodore, and to such others of de- 
fendants as shall, in the discretion of your Honors, appear necessary 
to the hearing and determination of this cause, commanding them on 
a day certain to appear and answer unto this bill of complaint; and to 
abide and perform such order and decree in the premises as to the 
court shall seem proper and required by the principles of equity and 
good conscience. 

CULLEN. SANDERS & SHELTON, F. M. DUDLEY, 

Solicitors for Complainant. 

State of Montana, / 

■ ss 
County of Lewis and Clarke, | 

F. M. Dudle}', being first duly sworn, on oath doth depose and 
say that he is an officer of said corporation, to-wit, its general 
land attorney. That the facts stated in the foregoing bill of com- 
plaint are true to his best knowledge, information and belief. 

F. M. DUDLEY. 

Subscribed and sworn to before me this 2nd day of September, 
A. D. 1890. GEORGE F. SHELTON, 

[seal] Notary Public. 

[Endorsed:] No. 70. — In Circuit Court of the United States. 
Ninth Circuit, District of Montana. Northern Pacific R. R. Co. vs. 
Maria Amacker et al. Bill of Complaint. Filed Sept. 4th, 1 890. 

Geo. W. Sproule, Clerk. 
I 8 And on the same day, to-wit, the 4th day of September, 

1890, a chancery subpoena was issued out of this court in 
the words and figures following, viz: 

United States of America. 

Circuit Court of the United States, Ninth Judicial Circuit, District 

of Montana. 

In Equity. 

The President of the United States of America, Greeting : 
To Maria Amacker, John J. Amacker, her husband, Walter H. 
Little, Alexander J. Steele, Allan Wheeler, Herbert B. Reed, M. 
G. Cohen, John F.McNulty, A. J. M. Hosom, Mary M.Johnson, and 
George S. Howell, The City of Helena, Evans A. Carleton, Lewis H. 
Warren, Cameron C. Wylie, Louis Archimbault, Theodore Holland, 
Frank H. Pings, John Doe, Richard Roe, John Smith, James Murphy, 



MARIA AMACKEK, ET AL. I 3 

W. Allen, R. B. Herbert, J. M. Mary, C. A. Evans, W. H. Lewis, 
Wylie C. Cameron, H. Theodore, and others. 

You are hereby coinanded, that you be and appear in said Circuit 
Court of the United States aforesaid at the court room in Helena, 
on the sixth day of October A. D. 1890, to answer a bill of com- 
plaint exhibited against you in said court by Northern Pacific Rail- 
road Company, who is a corporation created by and organized and 
existing under an act of Congress of the United States, , approved 
July 2nd, 1864, and to do and receive what the said court shall 
have considered in that behalf. And this you are not to omit, 
under the penalty of five thousand dollars. 

Witness the Honorable Melville W. Fuller, Chief Justice of the 

19 Supreme Court of the United States, this 4th day of Septem- 
ber, in the year of our Lord one thousand eight hundred 

and ninety, and of our independence the 115th. 

[Seal] GEO. W. SPROULE, Clerk. 

Menioi-anduui Pursuant to Rule 12, Supreme Court, U. S. 

You are hereby required to enter your appearance in the above 
entitled suit, on or before the first Monday of October next, at the 
Clerk's Office of said court, pursuant to said bill; otherwise the said 
bill will be taken pro confcsso. 

GEO. W. SPROULE, Clerk. 
Filed Nov. loth, 1890. 

GEO. W. SPROULE, Clerk, 

To which said chancery subpoena the marshal attached his return 
of service, which is in the words and figures following, to-wit: 

U. S. Marshal's Office \ 

District of Montana. f 

I hereby certify that I received the attached writ on the 5th day 
of September A. D. 1890, and personally served the same by copy 
certified to by the clerk of the U. S. Circuit Court for said District, 
on the dates set opposite each defendant's name, A. J. Steele, Sept. 
I2th, 1890; W. H. Little, Sept. 12th, 1890; H. B. Reed, Sept. 13th, 
4890; Maria Amacker, Sept. 13,1890; Donald Bradford, (City of He- 
lena) Sept. 13th, 1890; Allan Wheeler, Sept. 16th, 1890; John J. 
Amacker, Sept. i6th, 1890; Frank H. Pings, Sept. 17th, 1890; A. J. 
M. Hosom, Sept. 17th, 1890; Geo. Howell, Sept. 17th, 1890; M. G. 
Cohen, Sept. 19th, 1890. 

After diligent search I find Louis Archimbault, E. A. Carleton, 

Mary M. Johnson, J. McNulty, L. H. Warren, and T. Holland are 

absent from the District of Montana, and I herewith return 

20 subpoenas to office of Circuit Clerk for said District of Mon- 
tana. 

Helena, Mont. , Nov. ist, 1890. 

WM. F. FURAY, U. S. Marshal, 

Dist. of Montana. 



14 northern pacific railroad company vs. 

United States Marshal's Office ) 
District of Montana. ( 

I hereby certify that I received the within writ on the 20th day 
of Sept., 1890, and personally served the same on the 22nd 
day of Septemper, 1890, by delivering to, and leaving with C. C. 
Wyhe, said defendant named therein personally at the County of 
Missoula in said district, a certified copy thereof. 

Helena, 9-23, 1890. WILLIAM F. FURAY, 

U. S. Marshal 
By J. T. SAWHILL, Deputy. 

And afterwards, to-wit, on the 6th day of October 1890, upon a 
praecipe being filed the appearance of the defendants herein named 
were entered as follows : 

[Title of court and cause.] 

The appearance of defendants A. J. Steele, W. H. Little, H. B. 
Reed, F. H. Pings, and Geo. S. Howell, and the appearance of 
H. R. Buck, as their solicitor, is hereby entered this Oct. 6th, 
1890. GEO. W. SPROULE, Clerk. 

[Title of court and cause.] 

The appearance of defendant M. G. Cohen, and also of McCon- 
nell and Clavberg as his solicitors, is hereby entered this 6th day 
of Oct., 1890. ' GEO. W. SPROULE, Clerk. 

[Title of court and cause.] 

The appearance of defendants Maria Amacker and John J. Am- 
acker, and Massena Bullard as their solicitor is hereby entered this 
Oct. 6th, 1890. GEO. W. SPROULE, Clerk. 

21 And afterwards to-wit; on the the loth day of November, 

1890, the appearance of the defendant the City of Helena, 
was duly entered as follows : 

[Title of court and cause.] 

The appearance of the City of Helena, one of the defendants 
above named, and of Robt. B. Smith, as solicitor for said defend- 
ant, is hereby entered this loth day of November, A. D. 1890. 

GEO. W. SPROULE, Clerk. 

And thereafter to-wit, on the i8th day of Nov., 1890, the 
defendants A. J. Steele, Fisk J. Shaffer, Phillip H. Swan, Lewis 
H. Graves, Georgia C. Young, Fred E. Tibbets, G. Dana Lewis, 
Edward Williams, John Gockstetter, Hiram C. Burch and Allan 
Wheeler, by their solicitor, H. R. Buck, filed their demurrer, which 
is in words following, to-wit : 



MARIA AMACKEK, ET AL. I 5 

22 In the Circuit Court of the United States, District of Mon- 

tana. 

Northern Pacific R. R. Co. Plaintiff, 
vs. 
A. J. Steele, Fisk J. Shaffer, Phillip H. Swan, Lewis H. 
Graves, Georgia C. Young, Fred E. Tibbets, G. Dana Lew- 
is, Edward Williams, John A. Gockstetter, Hiram C. 
BuRCH, Allan Wheeler, Defendants. j 

The demurrer of the followinf( named defendants, A. J. Steele, 
Fisk J. Shaffer, Phillip H. Swan, Lewis H. Graves, Georgia C. 
Young, Fred E. Tibbets, G. Dana Lewis, Edward Williams, John 
A. Gockstetter, and Hiram E. Burch and Allan Wheeler, to the bill 
of complaint of the above named plaintiff. 

These defendants by protestation, not confessing or acknowledg- 
ing all or any of the matters or things in the said bill of complaint 
contained to be true in such manner and form as the same are here- 
in set forth and alleged, do, and each of said defendants doth, de- 
mur to the said bill. 

And for cause of demurrer show: ist — That it appeareth by the 
plaintiff's own showing by the said bill, that he is not entitled to the 
relief prayed by the bill against these defendants. 

Wherefore and for divers other good causes of demurrer appear- 
ing on the said bill, these defendants do and each of them does de- 
mur thereto; and pray the judgment of the Honorable Court wheth- 
er they shall be compelled to make any answer to the said bill; and 
humbly pray to be hence dismissed with reasonable costs in 

23 this behalf sustained. 

HORACE R. BUCK, 
Solicitor and counsel for the defendants named above. 

Power Block, Helena, Montana. 

I hereby certify that the foregoing demurrer is in my opinion well 
founded in point of law. 

HORACE R. BUCK. 
Of counsel for defendants named above. 
Helena, Nov. 5th, 1890. 

* State of Montana. \ 

County of Lewis and Clarke, v 

District of Montana. ) 

Walter H. Little being duly sworn deposes and says: I am one 
of the above named defendants. The foregoing demurrer is not 
interposed for delay. 

WALTER H. LITTLE, 
Sworn to before me this ^th day of November, 1890. 

J. A. CARTER, 
(Seal) Notary Public, Lewis and Clark County, Montana. 



1 6 NORTHERN PACIFIC RAILROAD COMPANY VS. 

[Endorsed] No. 70. In the Circuit Court of tlie United States, 
Ninth Circuit, District of Montana. Northern Pacific R. R. Co. 
Plaintiff t^j-. Maria Amacker, ct al. Defendant. Demurrer. H. R. 
Buck attorney for defendants. 

Filed 1 8th day of November, 1890. 

GEORGE W. SPROULE, Clerk. 

24 And afterwards, to-wit, on the 20th day of Nov. ,1890, the 
following further proceedings were had and entered of record 

in Minute Book No. i, page 123, which are in the words and figures 
following: 

Thirteenth day November term, A. D. 1890, Thursday, Novem- 
ber, 20th 1890, 10 A. M. 

Northern Pacific Railroad Company, ) 

vs. V 

Maria Amacker ct al. No. 70. \ 

Demurrer to the bill of complaint in this cause is set for hearing 
Nov. 2 1st, 1890. 

And afterwards, to-wit, on the 25th day of Nov. ,1890, the follow- 
ing further proceedings were had and entered of record in Minute 
Book No. I, page 130, in the words and figures following: 

Seventeenth day November term, A. D. 1890. Tuesday Nov- 
ember 25th 1890, 10 A. M. 

NoTHERN Pacific R. R. Co. j 

M. Amacker ct al. No. 70. \ 

This cause came on for hearing this day on defendants demurrer 
to bill of complaint, and was argued by T. C. Bach, Esq., for 
def'ts, and F. M. Dudley, Esq., for complainant, and further 
argument thereof was continued until Nov. 26th, 1890, at 10 A. M. 

And afterwards, to-wit. on the 26th da}' of November, 1890, the 
City of Helena filed its demurrer herein, which is in words and 
figures following: 

25 In the Circuit Court of the United States, District of Mon- 

tana. 

Northern Pacific Railroad Company. Plaintiff, 

I'S. 

A. J. Steele, Frank Shaffer, Phillip H. Swan, | ^ 

Lewis H. Graves, Georgia C. Young, Fred E. )- " "^^'^ ^' 
TiBBETS, G. Dana Lewis, Edward Williams, | 
John A. Gockstetter, Hiram C. Burch, Allan | 
Wheeler and City of Helena. ' I 

The demurrer of the city of Helena to the bill of complaint of 
the above named plaintiff. 

The defendant the City of Helena, appearing herein by counsel 



MARIA AMACKER, ET AL. 1 7 

and not confessing or acknowledging all or any of the matters or 
things in the said bill of complaint contained to be true in the 
manner and form as therein stated and set forth does demur to the 
said complaint, and for demurrer shows : 

1st — That it appeareth by the plaintiff's own showing by the said 
bill, that it is not entitled to the relief prayed by the said bill 
against this defendant. 

Wherefore and for other divers good causes of demurrer appear- 
ing on the said bill this defendant does demur thereto and pray the 
judgment of the honorable court whether they shall be compelled 
to make any answer to the said bill and humbly prays to be hence 
dismissed, with reasonable costs in this behalf sustained. 

ROBT. B. SMITH, 
Solicitor and counsel for defendant the City of Helena. 
I hereby certify that the foregoing demurrer is in my opinion 

26 well founded in point of law. 

ROBT. B. SMITH, 
Counsel for defendant. City of Helena. 
Helena, Nov. 26th, 1890, State of Montana, county of 
Lewis and Clarke, district of Montana. 

Filed Nov. 26th, 1890. GEO. W. SPROULE, Clerk. 

And afterward, to-wit, on the said 26th day of November, A. D. 
1890, the following further proceedings were had and entered of 
record in minute book No. i, page J 31, in the words and figures 
following : 

Eighteenth day, November term, A. D. 1890, Wednesday Nov- 
vember 26th, 10 A. M. 

Northern Pacific R. R. Co. ) 

vs. V 

Maria Amacker ct al. No. 70. ) 

Hearing of argument on demurrer to bill of complaint continued, 
and cause submitted to the court for consideration and decision. 

And afterwards, to-wit, on the 23rd day of January, 1891, the 
defendants Maria Amacker aud John J. Amacker filed their 
-demurrer to said bill of complaint, which said demurrer is in words 
and figures following : 

27 In the Circuit Court of the United States, for the District of 

Montana. 

Northern Pacific Railroad Company, Plaintiff, \ 

vs. I 

Maria Amacker, John J. Amacker, ct al.. Defendants. ) 

The demurrer of the above named defendants Maria Amacker and 
John J. Amacker to the bill of complaint of the above named plaintiff. 

These defendants, by protestation, not confessing or acknowl- 
edging all or any of the matters or things in the said bill of com- 



ss. 



l8 NORTHERN PACIFIC RAILROAD COMPANY VS. 

plaint contained to be true in such manner and form as the same 
are herein set forth and alleged, do, and each of said defendants 
doth, demur to the said bill. And for causes of demurrer show: 

First — That it appeareth by the plaintiff's own showing by the 
said bill that it is not entitled to the relief prayed by the said bill 
against these defendants. 

Wherefore, and for other divers good causes of demurrer appear- 
ing on the said bill, these defendants do demur thereto. And they 
pray the judgment of this Honorable Court whether they shall be 
compelled to make any answer to the said bill; and they humbly 
pray to be hence dismissed, with their reasonable costs in this behalf 
sustained. 

MASSENA BULLARD, 
Solicitor and of counsel for defendants Maria Amacker and John 

J. Amacker. Room 8, Gold Block, Helena, Montana. 

28 I hereby certify that the foregoing demurrer is in my opin- 
ion well founded in point of law. 

MASSENA BULLARD, 
Of counsel for defendants Maria Amacker and John J. Amacker. 
Helena, Montana, January 22, 1891. 

State of Montana, ( 

County of Lewis and Clarke, f 

Maria Amacker, being duly sworn, deposes and says: I am one 
of the above named defendants. The foregoing demurrer is not 
interposed for delay. 

MARIA AMACKER. 

Sworn to before me this twentv-second day of January, A. D. 1891. 

MASSENA BULLARD, 

Notary Public. 

[Endorsed:] No. 70. Northern Pacific Railroad Company, plain- 
tiff, vs. Maria Amacker and John J. Amacker, eta/., defendants. 
Demurrer of Maria Amacker and John J. Amacker. Filed Jan. 
23rd, 1 89 1. Geo. W. Sproule, clerk. Massena Bullard. of coun- 
sel for Maria Amacker and John J. Amacker. 

29 And afterwards, to-wit, on the 14th day of February, 1891, 
the following petition for an order of publication was filed in 

the words and figures following: 

In the Circuit Court of the United States, for the Ninth Circuit, 
District of Montana. 

Northern Pacific Railroad Company, Plaintiff, 1 

vs. - 

Maria Amacker et nl., Defendants. ' 

The petition of the above named plaintiff respectfully represents: 



MARIA AMACKEK, ET AL. IQ 

That this suit was commenced in the Circuit Court of the United 
States, for the Ninth Circuit, District of Montana, on the 4th day of 
September, A-. D. i8go, and is now pending in said court; that this 
suit is brought by plaintiff to enforce an equitable lien upon a claim 
to certain real property in said bill of complaint described, and to 
remove, certain encumbrances and clouds upon thetiltc to said prop- 
erty, which said property is situated within the District of Montana, 
where said suit is brought; that a subpoena was duly issued out of 
this court and has been served by the United States Marshal for 
this district upon certain of the defendants in said bill of complaint 
and in said subpoena named; but that the following named defend- 
ants, to-wit: J. McNulty, Mary M. Johnson, E. A. Carleton, 
L. H. Warren, C. C. Wylie, L. Archimbault, T. Holland, John 
Smith, James Murphy, W. Allen, R. B. Herbert, J. M. Mary, C. A. 
Evans, W. H. Lewis, John Doe and Richard Roe have not been 
served, and the said Marshal has returned said subpoena into court, 
with his return thereon endorsed, among other things, that he could 
not find the said defendants above named in the District of Montana, 
and for that reason has not served them with subpoena; that as 
your petitioner is informed and believes,- said defendants 
30 above named are not, and were not, at the time of the 

commencement of this suit, inhabitants of said District of 
Montana, nor can they be fonnd within said District of Mon- 
tana at this time, nor could they, or any of them, at any time 
during the pendency of this suit, be found within the said District of 
Montana, nor have said above named defendants, or any of them, 
voluntarily appeared to said bill of complaint. 

And your petitioner further avers that it is not practicable at this 
time to personally serve in any manner, the subpoena issued in this 
cause, nor has it been practicable at any time during the pendency 
of this suit for said petitioner to personally serve said subpoena up- 
on any of said above named defendants, or any of them. 

And your petitioner further avers that the subpoena in this cause 
has been served upon the persons in possession of, and charge of 
said property, described and set out in the bill of complaint in this 
action, and at the present time the following named persons are in 
charge and possession of said property: A. J. Steele, W. H. Little, 
H. B. Reed, Geo. S. Howell, Maria Amacker, and John J. Amacker. 

Wherefore, your petitioner prays this Honorable Court to make an 
order directing said absent defendants above named to appear, plead, 
answer or demur, by a day certain to be designated, and that said 
court further oi"der that said order shall be served on A. J. Steele, 
W. H. Little, H. B. Reed, Geo. S. Howell, Maria Amacker, and 
John }. Amacker, the persons in charge and possession of said pro- 
perty; and that said court further order that said order shall be pub- 
lished in such manner as the court may direct, not less than once 
a week for six successive weeks, and that thereupon said court make 



20 NORTHERN PACIFIC RAILROAD COMPANY VS. 

such further order as to it may seem meet and proper in the 
premises. 

F. M. DUDLEY, CULLEN, SANDERS & SHELTON, 

SoHcitors for Petitioner. 

31 Dated this 14th day of February, 1891. 

State of Montana, j 

County of Lewis and Clark, f 

W. E. CuUen, being lirst duly sworn, says: I am the attorney 
and agent of the above named plaintiff, and make this affidavit of 
verification for it and on its behalf; I have read the foregoing peti- 
tion and know the contents thereof, and the facts therein stated are 
true to my knowledge, except as to those matters therein alleged 
on information and belief, and as to those matters I believe it to be 
true. Said petition is not interposed for delav. 

W. E" CULLEN. 
Subscribed and sworn to before me this 14th day of February, 
i8'5i. 

GEORGE F. SHELTON, 

Notary Public. 
I hereby certify that the foregoing petition is in my opinion well 
founded in point of law. 

GEORGE F. SHELTON, 
Of counsel for petitioners. 
Filed Feb. 14, 1891. GEO. W. SPROULE. Clerk. 

And afterwards, to-wit, on the 14th day of February, 1891, the 
following further proceedings were had and entered of record in 
minute book No. i, page 192-194, in the words and figures 
following : 

In the United States Circuit Court, for the Ninth Circuit, District 

of Montana. 

Northern Pacific Railroad Co. Plaintiff, i 

Maria Amacker, ct al. , Defendants. ) 

32 Due and proper application having been made to this court 
in the above entitled action, praying for an order of this court 

wherein and whereby said court shall direct that certain absent de- 
fendants in the above named action, appear, plead, answer or de- 
mur by a day certain, in said order designated, to the bill of com- 
plaint filed by the plaintiff herein, and that said order be served up- 
on such absent defendant or defendants wherever found, and also 
upon the person or persons in possession and charge of the property 
described in the bill of complaint, and that said order be published 
in such order as the court may direct, not less than once a week, 
for six consecutive weeks; 

And it appearing to the satisfaction of this court from the petition 



MARIA AMACKER, ET AL. 21 

above named, and from the files and records of this court in this 
case, that the following named defendants, set forth in the bill of 
complaint filed herein, are not inhabitants of, or found within, said 
District of Montana, and were not inhabitants of, or found within, 
said District of Montana, at the time of the commencement of this 
suit, or at any time smce, and that that they have not voluntarily 
appeared to said bill of complaint. 

And it further appearing that personal service of the subpoena 
issued in this action upon said defendants, to-wit, J. McNulty, Mary 
M. Johnson, E. A. Carleton, L. H. Warren, C. C. Wylie, L. Arch- 
imbault, T. Holland, John Smith, James Murphy, W. Allen, R. B. 
Herbert, J. M. Mary, C. H. Evans, W. H. Lewis, W. C. Cameron, 
H. Theodore, and John Doe, or any of them, is not practicable. 

And it further appearing that this suit was commenced in the Cir- 
cuit Court of the United States, for the Ninth Circuit, District of 
Montana, on the 4th day of September, 1890, and is still pending 
in said court, and that said suit is brought to enforce an equitable 
lien upon, and claim to, certain real estate, and to remove certain 
encumbrances and clouds upon the title to said real estate, 
i^ set forth and described in plaintiff's said bill of complaint, 

which said real property is situated within the District of 
Montana, where such suit is brought, and that this is a proper case 
for such an order. 

And it further appearing to the court that the following named 
persons are in possesion and charge of said property at this time, 
to-wit: A. J. Steele, W. H. Little, H. B. Reed, Geo. S. Howell, 
Maria Amacker, John J. Amacker; it is hereby ordered that J. 
McNulty, Mary M. Johnson, E. A. Carleton, L. H. Warren, C. C. 
Wylie, L. Archimbault, T. Holland, John Smith, James Murphy, 
W. Allen, R. B. Herbert, J. M. Mary. C. A. Evans, W. H. Lewis, 
W. C. Cameron, H. Theodore, John Doe, and Richard Roe, being 
the absent defendants above named, appear, plead, answer or 
demur to the bill of complaint filed by the plaintiff herein by 
Wednesday, the first day of April, 1891, and that this order be 
served upon the persons in charge of said property, by delivering 
to said persons a copy of this order, and that said order be publish- 
ed in the Helena Daily Independent, a newspaper published in the 
County of Lewis and Clarke, State of Montana, once a week for six 
successive weeks before the first day of April, A. D. 1891. 

" HH^AM KNOWLES, 

U. S. Dist. Judge. 

Dated this 14th day of February, 1891. 

Filed Febr. 14th; 1S91. GEO. W. SPROULE, Clerk. 

To which said order the U. S. Marshal attached his return of 
service, which is in the words and figures following, to-wit : 



22 northern pacific railroad company vs. 

United States of America, 
District of Montana, 
Office of the Marshal. 

I, Wm. F. Furay, marshal of the district aforesaid, do hereby 
certify that I received the within and hereunto annexed order of 
court on the 6th day of March, A. D. 1891, and served the same 
on the 6th day of March, A. D. 1891, upon A. J. Steele, and W. H. 
Little, and on the 7th day of March, A. D. 1891, upon H. 
34 B. Reed, George Gotthardt, John Plank, whose true name 

is John Blank, Frank H. Pings, Joseph Gordon, whose true 
name is Joseph Jordan, J. J. Amacker and Maria Amacker, and on 
the I2th day of March, A. D. 1891, upon George Dibert, by deliv- 
ering to each of said persons personally in the County of Lewis and 
Clark, a copy of said order certified to by Geo. W. Sproule, Clerk. 

Dated Helena, Montana, April 14th, 1891 

WM. F. FURAY, U. S. Marshal, 
Fees: By W. F. PARKER, Deputy. 

Services $40,00 

Team hire 3- 00 



$43.00 
And to which said order proof of publication thereof was attached 
which is in the words and figures following to-wit: 

Affidavit of Publication. 

State of Montana, ) 

- ss 
County of Lewis and Clarke, \ 

D. H. Weston, being duly sworn, deposes and sa)'s: That he is 
bookkeeper of the Helena Daily Independent, a newspaper of gener- 
al circulation, printed and published in Helena, Lewis and Clarke 
County, Montana, and that the notice hereunto annexed (summons) 
has been correctly published in the regular and entire issue of every 
number of said paper for six consecutive weeks, commencing on the 
17th day of February, 1891, and ending on the 3Tst day of March, 
1891. 

D. H. WESTON. 
Subscribed and sworn to this 10th day of August, A. D. 1891. 
(Notarial Seal) DAVID MARKS, 

Notary Public. 
And afterwards, to-wit, on the second day of April, A. D. 1891, 
upon a praecipe being filed therefor the appearance of the 
35 following named defendant was duly entered herein, as 

follows: 
[Title of court and cause.] 

The appearance of George S. Howell, a defendant in the above 
entitled action, is hereby entered this 2nd day of April, A. D. 1891. 

GEO. W. SPROULE, Clerk. 



MARIA AMACKER, ET AL. , 23 

And thereafter to-\vit on the said 2nd day of April A. D. 1891, 
the appearance of said defendant George F. Dibert was duly entered 
herein as follows: 
[ Title of court and cause ] 

The appearance of George F. Dibert, a defendant in the above 
entitled action, is hereby entered this 2nd day of April A. D. 1891. 

GEO. W. SPROULE. Clerk. 

And afterwards, to-wit, on the 2nd day of April, A. D. 1891, the, 
appearance of said defendant F. H. Pings was duly entered here- 
in, as follows: 
[Title of court and cause.] 

The appearance of F. H. Pings, a defendant in the above entitled 
action, is hereby entered this 2nd day of April, A. D. 1891. 

GEO. W. SPROULE, Clerk. 

And afterward, to-wit, on the 2nd day of April, A. D. 1891, the 
appearance of Joseph Jordan, one of the defendants, was duly en- 
tered herein, as follows: 
[Title of court and cause.] 

The appearance of Joseph Jordan, a defendant in the above entitled 
action, is herebj' entered this 2nd day of April A. D. 1891. 

GEO. W. SPROULE, Clerk. 

And afterwards, to-wit, on the 4th day of April, A. D. I891, the 
appearance of John Blank, a defendant herein was duly entered as 

follows: 
36 [Title of court and cause.] 

The appearance of John Blank, a defendant in the above en- 
titled action, is hereby entered this 4th day of April, A. D. 1891, 

GEO. W. SPROULE, Clerk. 

And afterwards, to-wit, on the 4th day April, A. D. 1891, the 
appearance of the defendant George Gotthardt was duly entered 
herein, as follows: 
[Title of court and cause.] 

The appearance of defendant George Gotthardt, a defendant in 
the above entitled action, is hereb}' entered this 4th day of April, 
A. D. 1891, 

GEO. W. SPROULE, Clerk. 

And afterwards, to-wit, on the iith day of April A. D. 1891, the 
following further proceedings were had and entered of record in 
Minute Book No. 1, page 218, as in the words and figures following: 

Si.xth day April term, A. D. 1891. Saturday, April 11, 1891, 
10 A. M. Court convened pursuant to adiournment. Present: 
Honorable Hiram Knowles, United States District Judge, for the 
District of Montana. 

Northern Pacific R. R. Co. ) 

No. 70. vs. I 

Maria Amacker, cf a/. ) 

On motion of Thos. C. Bach, solicitor for some of the defend- 



24 NORTHERN PACIFIC RAILROAD COMPANY VS. 

ants in above cause, and upon consent of solicitors for complaint, 
leave is hereby granted to the solicitor for the defendants, to amend 
his demurrer filed in this cause by including the name of (^; /"defendant 
E. A. Carleton, and it is so ordered. 

And afterwards, to-wit, on the 13th day of April A. D. 1891, the 
following opinion as to the demurrer herein on file was filed: 

37 In the United States Circuit Court, Ninth Circuit, District 

of Montana. 



Northern Pag. R. Co. 

M. Amacker, ct al. 
On demurrer to bill of complaint. 



- In equity. 



Knowles, J. Plaintiff sets forth in its bill of complaint the 
grant to it of the alternate sections of land odd in number on the 
line of the definite route of its railroad constructed by it by virtue 
of an act of congress dated July 2, 1864; and facts sufficient also 
to show that all lands granted by said act within 40 miles on each 
side of the definite line of its road where it passes through Montana 
had vested in it, and that the land in controversy and described in 
the bill was upon an odd section within the limits of said grant. 
Plaintiff also sets forth certain facts which it is claimed show that 
said land is not within any of the exceptions in said grant, and also 
facts showing or tending to show that the patent issued to the said 
Maria Amacker was obtained from the United States upon false 
suggestions, and that the same is a cloud upon plaintiff's title. The 
prayer of the bill is : 

"And your orator prays that your honors may decree that the said 
defendants, and each of them, have no estate or interest whatso • 
ever in or to said lands or premises, and that the title of your 
orator is good and valid, and that the said defendants, and each of 
them, be forever enjoined and restrained from asserting any claim 
whatsoever in and to said land and premises adverse to your orator, 
and for such other and further relief as the equity of the case may 
require, and to your honors may seem meet." 

The defendants interpose to plaintiff's bill a general demurrer as 
follows : 

" That it appeareth by plaintiff's own showing by said bill that it 
is not entitled to the relief prayed by the said bill against the 
defendants." 

We are here confronted with the proposition as to whether the 
bill docs state facts sufficient to show that it has a right to appeal 
to the equity jurisdiction of this court. There is no allegation in 
the bill that plaintiff is in possession of the premises described there- 
in. It is alleged that two of the defendants are in possession of 
certain lots which have been laid out on a portion of the same, and 



MARIA AMACKER, ET AL. 2 5 

that the remainder of said premises is vacant, unimproved land. 
This is an analogous case to that oi Railroad Co. v. Cannon, ^6.¥ed. 
Rep. 224, decided this term. The only difference appears to 
be that in that case one of the defendants procured a 
38 patent to the premises in dispute, as it is alleged, upon the 

false representation that the premises named in the patent 
was mineral land excepted from the grant above named to plaintiff. 
In this case plaintiff sets forth certain facts which it is claimed show 
that the premises named in the bill were never excepted from 
plaintiff's said grant, and that, as the patent to the defendant Maria 
Amacker, under whom all the other defendants claim, was issued 
subsequent to plaintiff's grant, said patent was void. It was held 
by this court in the case of Railroad Co. v. Cannon, supra, that 
the title which the Northern Pacific Railroad Company received to 
the land granted to it within the limits of its grant was a legal title, 
and not an equitable one. It was also determined in that case that 
having a legal title, plaintiff could not maintain an action in equity 
to have this court adjudge concerning the adverse claims to its land, 
or to removS a cloud upon its title to the same, without showing 
that it was in possession of the land concerning which it sought such 
relief; that, while in some of the states there were statutory provis- 
ions which allowed the bringing of such an action where the land 
was vacant and unoccupied, no such provision of law existed in 
Montana; and that without such a statute such an action could not 
be maintained. It was not denied but there might be equitable 
grounds for exercising chancery jurisdiction where the plaintiff had 
a legal title, and was not in possession of the land in dispute; that 
the equitable ground claimed to exist in that case was that the exer- 
cise of the equitable jurisdiction might prevent a multiplicity of 
suits. The court held, however, that the bill did not show that 
there was any multiplicity of suits to be prevented in that case. 
The court is confronted in this case with the sam.e claim, that the 
exercise of the equity powers of the court will prevent in the con- 
troversy about the land in dispute a multiplicity of suits. Iij this 
case the allegations are more full upon this point than in the former. 
The bill makes ij parties defendant, alleging that each claims some 
interest in or to the premises or to some part thereof, and then this 
al legation follows : 

"And your orator further shows upon its information and belief 
that there are more than one hundred and fifty persons claiming 
some right, title, or interest in and to lots and blocks in said McLean 
Park addition, under said patent so isued to said Maria Amacker, 
as aforesaid, through mesne conveyances and instruments in writing 
from said Maria Amacker and John Amacker and their grantees; 
that the greater number of said instruments have not been recorded 
in the office of the recorder of Lewis and Clarke county, Montana, 
and your orator has no information, and cannot show to your honors, 
the names and residences of said persons, and such persons cannot, 



26 NORTHERN PACIFIC RAILROAD COMPANY VS. 

without inconvenience and oppressive delays, be all brought before 
your honors in this action." 
And again : 

"And your orator further shows that by reason of the great 
number of said defendants it will be necessary to bring a multipli- 
city of suits in order to maintain the rights of your orator in and to 
said premises, unless your honors should permit and allow the 
parties defendant herein to defend for their interests of these claim- 
ants of portions of said premises who are not expressly named as 

defendants, as well as for their own rights. " 
39 It is evident plaintiff holds to the view that, should it pro- 

ceed at law. it would be obliged to institute a separate suit 
against each claimant in said premises. But this is not the case. 
The plaintiff would not be required to bring more than one action 
at law to determine the right of possession of said premises against 
all parties claiming the same, or any part thereof, who are in possess- 
ion of any part of the same, or who, having deeds thereto, have 
exercised acts of ownership over it. Such has been the recognized 
practice in the courts of Montana; and in the state of California, 
from which Montana borrowed its Code of Civil Procedure, such 
has been the practice for years. In the case of Ritchie v. Doj-land, 
6 Cal. 33, the court held that plaintiff in an action in the nature of 
ejectment "could join any number of parties defendant without re- 
gard to the extent or character of their possessions, subject only to 
their right to answer separately or demand separate verdicts." It 
was held also in this case that, where the defense is the same in any 
action of this nature, the court could compel all to proceed in one 
trial. In the case of City of Sail Francisco v. Bcidcmaii, 17 Cal. 
461, the supreme court of California sa3's: 

"Nor can the bill be maintained upon the ground of a prevention 
of multiplicity of suits. A single action of ejectment would deter- 
mine the whole title. All the tenants can, under our practice, be 
sued together, and the right of the plaintiff fully vindicated in a 
single suit." 

It will be observed that in this case the jurisdiction of the court 
as a court of equity was invoked on the ground that the suit would 
prevent a multiplicity of suits; and the court held that there was no 
necessity for a multiplicity of suits, although there were several 
defendants claiming and possessing the premises. In the case of 
Nevitt V. Gillespie, 26 Amer. Dec. 696, the court says: 

"Courts of equity will also interpose to prevent a multiplicity of 
suits where the subject-matter of the contest is held by one individ- 
ual in opposition to a number of persons who controvert his right, 
and who hold separate and distinct interests depending upon a com- 
mon source." 

The general language here used would seem to cover the case at 
bar; but a little further on in the opinion we find the following: 



MARIA AMACKER, ET AL. 2/ 

"The plaintiff, by its interposition, [that is, a court of chancery,] 
is reheved from the necessity of bringing a number of suits at law 
against different individuals to quiet the same common right, where 
each suit would establish only the particular right in question be- 
tween the plaintiff and defendant in that suit." 

Here we find the rule first specified based upon the idea that there 
would have to be a number of suits instituted to determine all the 
rights of plaintiff. Where this would not be the case there is no 
ground for equitable jurisdiction; and I do not think a case of any 
weight can be found which would sustain the jurisdiction of a court 
of equity in a case where the parties in a single action at law might 
be numerous. In a proper case at law, as well as in equity, a por- 
tion of the parties in interest may defend or prosecute an action for 

the others in interest. The practice established by the stat- 
40 utes and courts of Montana, in such cases as the one at 

bar, has been adopted by a statute of the United States for the 
federal courts in this State. This view is sustained where the State 
practice was adopted by rule of court previous to the United States 
statute above referred to. Beard v. Federy, 3 Wall. 478. Nor does 
this practice in any way curtail the equity jurisdiction of the courts. 
It was not so intended. It confers no equity jurisdiction upon a law 
court. The object in adopting such a practice was to simplify legal 
proceedings. The common-law action of ejectment did not determ- 
ine the title to land; and hence, after one or two trials of this na- 
ture at law, concerning a tract of land, a court of equity, with a 
view of preventing a multiplicity of suits, might interpose, and set- 
tle the issue once for all. Now the action under the Code practice 
in the nature of an action of ejectment does, where the question of 
title is invoked, determines and settles it between the parties to 
the action, and there is no necessity for a court of equity to inter- 
fere. The perfecting of legal proceedings has often done away with 
the necessity of a resort to equitable remedies. It may be doubted 
whether the case at bar should be classed as one which would give 
a court of equity jurisdiction with a view of preventing a multiplicity 
of suits, even should the plaintiff have to bring an action against 
each one claiming title to the land in controversy. The supreme 
court of California, in the cases of Ritchie v. Dorland, 6Cal., of 
opinion page 40, and in Kncnvles v. Inches, 12 Cal. 213, did not 
think it would; but that point I am not called upon to decide. If 
the land is unoccupied I see no reason wh}' the plaintiff cannot take 
possession of the same, and then bring the appropriate action to 
determine the title to the same. The great hardship which would 
be devolved upon plaintiff if it should be compelled to take possess- 
ion of its lands before bringing such an action as this was alluded to 
by counsel for plaintiff. This hardship was based upon the exten- 
ded landed possessions of plaintiff. I know of no rule of law which 
would allow plaintiff, on account of its extended landed possesions, 
to envoke any rule of practice in this matter different from a person 



28 NORTHERN PACIFIC RAILROAD COMPANY VS. 

of limited domain. Perhaps the rule in a court of equity, which 
denies its right to determine an adverse title to or remove a cloud up- 
on land where the land is vacant and unoccupied, should be chang- 
ed in Montana, as it has in many states, by statute law. Until 
this is done I do not see how I can disregard the well-established 
rules of equity jurisdiction upon this point. 

There is another point worthy of consideration in considering the 
question of multiplicity of suits. The action usually called "eject- 
ment" lies on behalf of a plaintiff against a defendant who with- 
holds from him the possession of real estate to which he is entitled. 
The bill in this case shows upon its face that only two of the defend- 
ants named, and none of the one hundred and fifty who it is alleged 
claim some interest in the premises described in the bill, are with- 
holding from plaintiff any portion of said premises. The only 
actions at law which the plaintiff has concerning these premises, 
then, are two, — hardly enough to be called such a multiplicity of suits 
as to demand the intervention of a court of equity. For the 
41 reasons stated above I do not think the bill shows any equity. 

Where a bill fails to state facts sufficient to present a case 
within the equitable jurisdiction of the court the United States 
courts have held that a coiirt of equity is without authority to deter- 
mine anything further in the case than its own jurisdiction. 

The demurrer in this case is sustained. 

Filed April 13th 1891, GEO. W. SPROULE, Clerk. 

And afterwards, to- wit, on the said 13th day of April, A. D. 1891, 
the following further proceedings were had and entered of record in 
this cause in the words and figures following, to-wit: 

Seventh day April Term, A. D. 1891, Monday, April 13th, 
1891, 2 P. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District 
Judge, for the District of Montana. 



No. 70 — Northern Pacific Railroad Company. 

7'S. 

Maria Amacker, r/ a/. 



I 



On motion of solicitors for complainant, it is ordered that complain- 
ant have 25 days from this date, to file amended complaint, or 
further plead herein. 

And afterwards, on towit, the i ith day of May A. D. 1891, the 
following further proceedings were had and entered of record in 
this cause in the words and figures following, viz; 

April Term, A. D. 1891, Monday, May nth, 1891, 2 P. M. 

Court convened pursuant to adjournment; 

Present: Honorable Hiram Knowles, United States District 
Judge, for the District of Montana. 



MARIA AMACKER, ET AL. 29 

No. 70 — Northern Pacific R. R. Co. i 

7'S. I 

M. Amacker ct al. ) 

42 Solicitors for complainant here stated that complainant 
would decline to amend, and would stand on their bill of 

complaint, and thereupon a decree was signed and ordered entered 
herein. 

And afterwards, to-wit: on said i ith day of May, A. D. 1891, a 
final decree was entered heaein, which said decree is in the words 
and figures following, to-wit. 

United States Circuit Court, For the District of Montana. 

Northern Pacific Railroad Company, Complainant, j 

vs. 
Maria Amacker, John J. Amacker, her husband, Walter H. Lit- 
tle, Alexander J. Steele, Allen Wheeler, Herbert B. 
Reed, M. G. Cohen, John McNulty, A. J. M. Hosom, Mary 
M. Johnson, George S. Howell, The City of Helena, 
fi^vANs A. Carleton, Lewis H. Warren, Cameron C. Wylie, 
Louis Archimbault, Theodore Holland, Frank H. Pings, 
John Doe, et al. , Defendants. J 

Decree. 

This cause having come on to be heard by the court, and having 
been argued by counsel, it is ordered, adjudged and decreed, and 
the court doth hereby order, adjudge and decree that the bill of 
complaint herein be and is hereby dismissed, without prejudice to 
the right of the said complainant, its successors or assigns, to in- 
stitute and prosecute such other and further suits or proceedings, 
either in law or equity, as to it or them may seem necessary or 
proper for establishing its or their right and title, if any, to the 
lands, or any portion thereof, described in the bill herein. 

HIRAM KNOWLES, Judge. 

Filed May nth, 1891. GEO. W. SPROULE, Clerk. 

43 And thereafter, to-wit, on the lothday of August, complain- 
ant, by its Solicitor, F. M. Dudley, filed its petition for an 

allowance of appeal in open court, which said petition is in the 
words and figures following, to-wit: 



30 NORTHERN PACIFIC RAILROAD COMPANY VS. 

44 . 

United States Circuit Court, For the District of Montana. 

Northern Pacific Railroad Company, Complainant and Appell- 
ant. 

Maria Amacker; John J. Amacker, her husband; Walter H. 
Little, Alexander J. Steele, Allan Wheeler, Herbert B. 
Reed M. J. Cohen, John NcNulty, A. J. M. Hosom, Mary M. 
Johnson, Geo. S. Howell, The City of Helena, EvAn A. Carle- 
Ton, Lewis H. Warren, Cameron C. Wylie, Louis Archim- 
BAULT, Theodore Holland, Frank H. Pings, John Doe, Rich- 
ard Roe, et al. , Defendants and Respondents. 

The above named complainant, Northern Pacific Railroad Corn- 
pan}', conceiving itself aggrieved by the final decree entered in the 
above entitled cause. May i i, 1891, at the April term of said court, 
doth hereby appeal from said final decree to the United States Cir- 
cuit Court of Appeals, for the Ninth Circuit, and prays that this, 
its said appeal, may be allowed; that a transcript of the record, 
proceedings and papers upon which said final decree was made, 
duly authenticated, may be sent to the said United States Circuit 
Court of Appeal, for the Ninth Circuit; and that the proper orders 
touching the security required of it may be made. 

F. M. DUDLEY, 
Attorney for complainant and appellant, 

Germania Life Insurance Building, 
Corner Fourth & Minnesota Streets. St. Paul, Minnesota. 
Filed August loth, 1891. GEO. W. SPROULE, Clerk. 

Now, to-wit, August loth, A. D. 1891, it is ordered that the ap- 
peal be allowed, as prayed for. 

HIRAM KNOWLES, 

U. S. Dist. Judge. 

45 And on the same day, to-wit, August loth, A.D. 1891, com- 
plainant filed its assignment of errors herein, the same being 

in the words and figures following, viz: 

46 United States Circuit Court, for the District of Montana. 
Northern Pacific Railroad Company, Complainant. ~] 

Maria Amacker, John J. Amacker, her husband; Walter H.Lit- | 
TLE, Alexander J. Steele, Allan Wheeler, Herbert B. I 
Reed, M. J. Cohen, John McNulty, A. J. M. Hosom, Mary \- 
M. Johnson, George S. Howell, The City of Helena, Ev- | 
ans a. Carleton, Lewis H. Warren, Cameron C. Wylie, j 
Louis Archimbault, Theodore Holland, Frank H. Pings, | 
John Doe, Richard Roe, et al. Defendants. j 

Assigiuiicnt of Errors. 

Now comes the above complainant, Northern Pacific Railroad 



• MARIA AMACKER, ET AL. 3 1 

Company, by its attorneys, and says that in the records and pro- 
ceedings in the above entitled cause, in said United States Circuit 
Court for the District of Montana, there is manifest error, as follows, 
to- wit: 

(0 

The said court held that complainant's said bill did not show that 
it was entitled to equitable relief as prayed for, for that it did not 
show possession of said premises in complainant. 

(^) 

The said court held that complainant's said bill did not show that 
plaintiff was in possession of the premises, or any part thereof, des- 
cribed in said bill. 

(3) 

The said court held said bill of complaint insufficient to 

47 entitle complainant to the relief prayed for, unless it appeared 
by said bill that complainant was in possession of said prem- 
ises. 

(4) 

The said court failed and declined to hold that said bill showed 
that complainant duly accepted the terms, conditions and imposi- 
tions of the act of congress approved July 2, 1864; that February 
21, 1872, complainant duly filed the map of general route of its said 
road extending through Montana; that said land was on and within 
forty miles of said line of general route, and was, Februar}' 21, 
1872, non-mineral, public land to which the United States had full 
title, not reserved, sold, granted, or otherwise appropriated, and 
free from pre-emption or other claims or rights. 

(5) 

The said court failed and declined to hold that said bill showed 
the pre-emption filings of A. J. Wetter, William M. Scott, Jerome 
S. Glick, and Robert C. Wallace were null and void, and were, 
February 21, 1872, e.xpired filings and did not constitute a claim or 
right to the land described therein. 

(6) 

The said court failed and declined to hold that said bill showed 
the lands described therein were reserved from sale, pre-emption 
or entry from and after February 21, 1872, except by complainant. 

48 . (7) 

The said court failed and declined to hold that said bill showed 
the homestead entry of said land by William H. McLean, May 3, 
1872, in said bill described, was null and void and totally without 
effect. 



32 NORTHERN PACIFIC RAILROAD COMPANY VS. 

(8) 

The said court failed and declined to hold that said bill showed 
the lands described therein were reserved from sale, pre-emption or 
entry, except by complainant, from and after September i i, 1879. 

(9) 

The said court failed and declined to hold that said bill showed that 
complainant definitely fixed the line of its said railroad extending 
opposite to and past said premises in said bill described, and filed a 
plat thereof in the office of the commissioner of the general land 
office July 6, 1882; that said land was then non-mineral, public 
land, to which the United States had full title, not reserved, sold, 
granted, or otherwise appropriated, and free from pre-emption or 
other claims or rights; was on and within forty miles of the said 
line of definite location; and that said complainant on that day 
acquired the legal title thereto. 

( lOJ 

The said court failed and declined to hold that said bill showed 
complainant had duly completed and constructed its said railroad and 
telegraph line past said land in said bill described, and was entitled 
to a patent therefor. 

49 CO 

The said court failed and declined to hold that said bill showed 
that March 15, 1883, at the time said Maria McLean applied to 
purchase said land, as in said bill set forth, and at the time she was 
allowed to purchase the same, and June 17, 1887, at the time a 
United States patent was issued to her therefor, said land was 
owned by complainant; and that said patent was issued wrongfully 
and without authority of law, and was and is a cloud upon com- 
plainant's title to said land. 

(12} 

The said court failed and declined to hold that said bill showed 
that none of said defendants took any right, title, or interest in and 
to said lands, or any part thereof under and by virtue of said 
patent, or of any of the deeds or conveyances thereunder. 

(13) 

The said court failed and declined to hold that said bill 
showed the said patent and deeds and conveyances thereunder, 
were null and void, and a cloud upon complainant's title, which 
complainant was entitled to have removed by a court of equity. 



MARIA AM ACKER, ET AL. 33 

( 14) 

• 

The said court failed and declined to hold that said bill showed 

complainant was in possesion of every portion of said land in said 

bill described, except those portions described as lot one ( i ) to 

ei^ht (8) inclusive, block thirty-two (32) and lots twenty- 

50 three (23) and twenty-four (24) in block thirty (30) of 
McLean Park Addition to the City of Helena, Montana. 

(15) 

The said court failed and declined to hold that it appeared from 
said bill that possession was unnecessary to the maintenance of said 
action. 

(16) 

The said court held that it appeared from complainant's own 
showing by said bill that it was not entitled to the relief prayed by 
said bill against said defendants. 

Wherefore said Northern Pacific Railroad Company prays that 
the decree of said United States Circuit Court for the District of 
Montana, in the above cause heretofore entered, to-wit, May 1 1 , 
1 89 1, dismissing complainant's said bill, be reversed; and that said 
court be directed to enter an order overruling said demurrer and di- 
recting said defendants to answer complainant's said bill, as in said 
bill prayed. F. M. DUDLEY, 

Attorney for Complainant. 
Germania Life Insurance Building, Corner Fourth & Minnesota 

Streets, St. Paul, Minnesota. 

Filed August 10, 1891. GEO. W. SPROULE, Clerk. 

51 And afterwards, to-wit on the loth day of August A. D. 
1 89 1, the following further proceedings were had and entered 

of record in the words and figures following: 

Sixty-third day April term, A. D. 1891, Monday August loth 
1891, 10 A. M. 

Court convened pursuant to adjournment; 

Present: Honorable Hiram Knowles, United States District Judge, 
for the District of Montana. 

No. 70 — Northern Pacific Railroad Company Complainant ) 

vs. I 

Maria Amacker <;•/ a/. , Defendants. ) 

On motion of F. M. Dudley, solicitor and of counsel for com- 
plainant, it is ordered that an appeal to the United States Circuit 
Court of Appeals for the Ninth Circuit, from the decree filed and 
entered herein be and the same is allowed and that a transcript of 



34 NORTHERN PACIFIC RAILROAD COMPANY VS. 

the record and all proceedings herein be forthwith transmitted to 
said United States Circuit Court of Appeals for the Ninth Circuit. 

It is further ordered that the bond on appeal be fi.xed in the 
amount of two thousand dollars ( $2000.) 

And on the same day, to-wit, the loth day of August A. D. 1891, 
an appeal bond was filed and approved in the words and figures fol- 
lowing viz: 

52 United Stati?s Circuit Court, for the District of Montana. 
Northern Pacific Railroad Company, Appellant, 

7'S. 

Maria Amacker, John J. Amacker, her husband, Walter 
H. Little, Alexander J. Steele; Allan Wheeler; 
Herbert B. Reed; M. J. Cohen; John McNulty; A. J. M. 
Hosom; Mary M. Johnson; George S. Howell; the City y 
OF Helena; Evans A. Carleton; Lewis H.Warren; Cam- 
eron C. Wylie; Louis Archimbault; Theodore Holland; 
Frank H. Pings; John Doe; Richard Roe. ei a/, 
Respondents. 

Bond. 

Know all men by these presents. The said Northern Pacific Railroad 
Company, a corporation created, organized and existing under 
and by virtue of an act of congress, approved July 2, 1864, by its 
attorney, F. M. Dudley, as principal, and Edward W. Knight and A. 
M. Holter of the city of Helena, Montana, are held and firnaly 
bound unto Maria Amacker; John J. Amacker, her husband; Walter 
H. Little, Alexander J. Steele; Allan Wheeler; Herbert B. Reed 
M. J. Cohen; John McNulty; A. J. M. Hosom; Mary M. Johnson 
Geo. S. Howell; Frank H. Pings; George Gotthardt; John Blank 
Joseph Jordan; George Dibert; Fisk J. Shaffer; Phillip H. Swan 
Lewis H. Graves; Georgia C. Young; Fred E. Tibbets; G. Dana 
Lewis; Edward Williams; John A. Gockstetter; Hiram C. Birch; 
City of Helena; Evans A. Carleton; Lewis H. Warren; Cam- 

53 eron C. Wylie; Lewis Archimbault; Theodore Holland; John 
Doe, Richard Roe, r/ a/, defendants in the above entitled 

cause, in the sum of $2000.00 to be paid to the said defendants; 
for the payment of which, well and truly to be made, we bind our- 
selves, and each of us, our and each of our, heirs, executors, 
administrators and successors, jointly and severally, firmly by these 
presents. 

Sealed with our seals and dated this tenth day of August, A. D. 
1891. 

Whereas the above named Northern Pacific Railroad Company 
has prosecuted an appeal to the United States circuit court of ap- 
peals, for the Ninth Circuit, to reverse the decree entered in the 
above entitled cause by the judge of the United States circuit court 
for the District of Montana. 



MARIA AMACKEK, ET AL. 35 

Now therefore the condition of this obhgation is such that if the 
above named Northern Pacific Railroad Company shall prosecute 
said appeal to effect, and answer all damages and costs if it fails to 
make said appeal good, then this obligation shall be void; otherwise 
the same shall remain in full force and effect. 

NORTHERN PACIFIC RAILROAD COMPANY. 

By F. M. DUDLEY [Seal] 

EDWARD W. KNIGHT [Seal] 

A. M. HOLTER [Seal] 

Signed and delivered in presence of 
W. E. CULLEN. 

Approved by 

HIRAM KNOWLES 

U. S. District Judge 
Filed Aug. loth. 1891, GEO. W. SPROULE, Clerk 

54 United States of America, 
District of Montana,- 

Circuit Court of the United States, Ninth Circuit, District of 

Montana. 

I, George W. Sproule, clerk of said circuit court, do hereby certi- 
fy and return to the honorable the United States Circuit Court of 
Appeals for the Ninth Circuit, that the foregoing volume consisting 
of 54 pages numbered consecutively from i to 54, inclusive is a true 
and complete transcript of the records, process, pleadings, orders, 
final decree and other proceedings in said cause and of the whole 
thereof as appear from the original records and files of said court; 
and I do further certify and return that I have annexed to said tran- 
script and included within said paging the original citation, together 
with the proof of service thereof. 

In witness whereof I have hereunto set my hand and affixed the 
seal of said court, at Helena, in the district of Montana, this 13th 
day of August in the year of our Lord one thousand eight hundred 
and ninety one, and of the Independance of the United States the 
one hundred and fifteenth. 

[Seal] GEORGE W. SPROULE Clerk. 



DNITED STATES CIRCUIT COURT 

OF APPEALS 
FOR THE MINTH CIRCUIT. 

OCTOBER TERM, 1891, 

Northern Pacific Rail- 
road Company, 

Appellants 
^ -. ;No. 3. 

Maria Amacker ct al., 
Respondetits. 



Statement, Specification of Errors, and Brief 
for Appellant. 

Fred. M. Dudley, 

Solicitor for Appellant. 

loss & Gardner. 



'77 (^ e#^/- :3r, //^/ 



United States Circuit Court 
of Appeals 

FOR THE NINTH CIRCUIT. 



Northern Pacific Railroad Company, 

Appellant^ 



Maria Amacker, et al.. 

Respondents, 



APPELLANT'S BRIEF. 



STATEMENT OF CASE. 

This is an action in equity to have a patent issued by 
the United States to the defendant Maria Amacker, July 
17, 1887, for the west half of the northwest quarter, the 
southeast quarter of the northwest quarter, and the south- 
west quarter of the northeast quarter of section 17, town- 
ship 10 north, of range 3, west P. M., Montana, declared 
null and void and a cloud upon appellant's title to this 



land ; and to enjoin and resti ain the defendants from as- 
serting any claim thereto, adverse to the railroad com- 
pany. Defendants demurred to the bill. The court 
sustained the demurrer, and complainant declining to 
amend its bill, a decree was entered dismissing the same. 
Complainant appeals. 

The railroad company claims title under the act of 
Congress approved July 2, 1S64, entitled "An act grant- 
ing lands to aid in the construction of a railroad and 
telegraph line from Lake Superior to Puget's Sound on 
the Pacific coast, by the northern route." The sections of 
this act material to this case are as^foUows : 

Section 3. " That there be, and hereby is, granted to 
the 'Northern Pacific Railroad Company,' its successors 
and assigns, for the purpose of aiding in the construction 
of said railroad and telegraph line to the Pacific coast, 
and to secure the safe and speedy transportation of the 
mails, troops, munitions of war, and public stores, over 
the route of said line of raihva\', every alternate section 
of public land, not mineral, designated by odd numbers, 
to the amount of twenty alternate sections per mile, on 
each side of said railroad line, as said company may 
adopt, through the territories of the United States, and 
ten alternate sections of land per mile on each side of said 
railroad whene%er it passes through any state, and when- 
ever on the line thereof, the United States have full title, 
not reserved, sold, granted, or otherwise appropriated, and 
free from pre-emption, or other claims or rights, at the 
time the line of said road is definitely fi.\ed, and a plat 
thereof filed in the office of the commissioner of the gen- 
eral land office ; and whenever, prior to said time, any of 
said sections or parts of sections shall have been granted, 
sold, reserved, occupied by homestead settlers, or pre- 
empted, or otherwise disjDosed of, other lands shall be se- 
lected by said ccfmpany in lieu thereof, under the direction 
of the secretary of the interior, in alternate sections, and 
designated by odd numbers, not more than ten miles 
bevond the limits of said alternate sections : provided^ 
tiiat if said route shall be found upon the line of any other 
railroad route to aid in the construction of which lands 
have been heretofore granted by the United States, as far 
as the routes are upon the same general line, the amount 
of land heretofore ^ranted shall be deducted from the 



amount granted by this act : froviJcd further^ that the 
raih-oad cumpany receiving the previous grant of huid 
may assign their interest to said 'Northern Pacific Rail- 
road Company,' or may consoHdate, confederate, and 
associate with said company upon the terms named in the 
first section of this act : provided further^ that all miner- 
al lands be, and the same are hereby, excluded from the 
operations of this act, and in lieu thereof a like quantity 
of unoccupied and unappropriated agricultural lands, in 
odd numbered sections, nearest to the line of said road, 
may be selected as above provided : and provide4 further, 
that the w^ord ' mineral,' when it occurs in this act, shall 
not be held to include iron or coal : and provided further, 
that no money shall be drawn from the treasury of 
the United States to aid in the construction of the said 
'Northern Pacific Railroad.' " 

Section 6. "That the president of the United States 
shall cause the lands to be surveyed for forty miles in 
width on both sides of the entire line of said road, after 
the general route shall be fixed, and as fast as may be re- 
quired by the construction of said railroad ; and the odd 
sections of land hereby granted shall not be liable to sale, 
or entry, or pre-emption before or after they are sur- 
veved, except by said company, as provided in this act ; 
•but the provisions of the act of September, eighteen hun- 
dred and forty-one, granting pre-emption rights, and the 
acts amendatory thereof, and of the act entitled ' An act 
to secure homesteads to actual settlers on the public do- 
main,' approved May twenty, eighteen hundred and jixty- 
two, shall be and the sam.e are hereby, extended to all 
other lands on the line of said road, when surveyed, ex- 
cepting those hereby granted to said company. And the 
reserved alternate sections shall not be sold by the govern- 
ment at a price less than two dollars and fifty cents per 
acre when offered for sale." 

The bill, after setting up the provisions of this act, 
alleges their acceptance by the grantee December 39, 1S64; 
that the complainant fixed the general route of its road 
through Montana February 21, 1S73 ; and that the land 
involved was on and within forty miles of the line of gen- 
eral route so fixed. That the land was, February 21, 1S72, 
public land to which the United States had full title, not 
reserved, sold, granted, or otherwise appropriated, and 



was free from pre-emption or other claims or rights. 
That the lands were surveyed in Fehruary and March, 
iS6S, and the township plat was returned to and filed in 
the district land office for the district of Helena (that be- 
ing the district in which the lands were located) July 23, 
1S6S. Julv 6, 1SS2, the railroad company definitely fixed 
the line of its road opposite to and past this land, and 
within forty miles thereof, and filed a plat thereof in the 
office of the commissioner of the general land office ; and 
it is alleged that the lands were, on that day, public lands 
to which the United States had full title, not reserved, 
sold, granted, or otherwise appropriated, and were free 
from pre-emption or other claims or rights, except as in 
the bill stated. The roaS was thereafter duly constructed, 
completed, examined, and accepted. The land is non- 
mineral. The foregoing allegations are modified by the 
following additional allegations, which, it is contended by 
defendants, show the land to be excluded from the grant : 
That May 13, 1S6S, A.J. Wetter filed a declaratory state; 
ment under the pre-emption laws, in the district land office, 
for the northwest quarter of the northwest quarter of said 
section 17, with other lands, claiming settlement the same 
day. It will be noticed that this filing preceded the filing 
of the township plat in the district land office. October 
5, 1S6S, November 27, 1868, and December 10, 1869, 
William M. Scott, Jerome S. Click, and Robert C. Wal- 
lace filed declaratory statements under the pre-emption 
laws for other portions of this land, a'ith other lands, but, 
as appears from the bill, neither of these parties ever set- 
tled upon the lands described in their declaratory state- 
ments, nor did either of them at any time inhabit or im- 
prove the same, or erect a dwelling thereon. 

It is further alleged that May 3, 1S72, before notice of 
the fixing of the general route of the road was received at 



the Helena laml office, William H. McLean applied at 
said land office to enter the land in controversy under the 
homestead law, and was permitted so to do by the district 
land officers. McLean, however, did not reside upon or 
cultivate the land ; and, having failed to appear and show 
cause, in obedience to due notice, why his entry should 
not be canceled for failure to make proof of compliance 
with the provisions of the homestead law, his entry was 
canceled by the commissioner September 1 1, 1879. From 
this action McLean did not appeal. August 20, 1883, Mc- 
Lean died, leaving a widow, Maria McLean, the present 
defendant, Maria Amacker. March 15, 1SS3, Maria Mc- 
Lean applied to purchase this land under the provisions of 
the act of congress approved June 15, 1S80. This appli- 
cation was allowed by the commissioner. The railroad 
company appealed from this action to the secretary of the 
interior, and March 28, 1SS7, the secretary affirmed the 
commissioner's decision. June 17, 1S87, in accordance 
with the secretary's opinion, a patent was issued to Mrs. 
McLean for the land. August 6, 18S9, the land was 
platted as a townsite ; and the various other defendants 
claim an interest in town lots and blocks through mesne 
conveyances from the patentee. 

After alleging that two of the defendants are in posses- 
sion of certain lots named, the bill alleges that the re- 
mainder "is vacant, unoccupied land, and that your orator 
is seized thereof in fee simple.'^ It is further alleged, 
upon information and belief, that there are about one hun- 
dred and fifty persons claiming an interest in and to lots 
and blocks in the platted townsite by mesne conveyances 
from the patentee, but that their names and residences 
cannot be ascertained ; and that by reason of the number 
of such defendants a multiplicity of suits will be necessary 
to maintain appellant's rights, unless the court shall allow 



6 

the defendants named to defend for the interests of the 
unknown defendants, as well as for their own rights, and 
that the defendants named "fairly represent all of the in- 
terests in and to said premises, or an}- part thereof, which 
are held or claimed to he adverse to the right and title" of 
the railroad compaii}-. 

Defendants apjDeared and demurred to the bill for "that 
it appeareth by plaintiff's own showing that it is not en- 
titled to the relief prayed ' by the said bill against the de- 
fendants." The court sustained the demurrer upon the 
ground that "there is no allegation in the bill that jDlaintiff 
is in possession of the premises ;" and as plaintiff's title, if 
an}', is the legal title, actual possession is necessary to the 
maintenance of an equitable action of this nature. No 
opinion was expressed as to the merits of the respective 
titles as shown by the facts alleged. Complainant having 
declined to amend its pleadings, a decree was entered dis- 
missing the bill. From this decree complainant has pros- 
ecuted this appeal. 

The questions presented by the record are two: First, 
the sufficiency of the title alleged by the railroad com- 
pany to entitle it to any relief: second, conceding that the 
bill shows title to the land in complainant, is it entitled to 
the equitable relief prayed? 

Under the act of July 2, 1S64, it is the condition of the 
title to land nt the time the line of the road is definitelv 
fixed and a plat thereof filed in the office of the com- 
missioner of the general land office, in this case Julv 6, 
1S83, that determines whether the land passes under the 
grant to the railroad company. To determine the condi- 
tion of this title on that day, it is necessary to ascertain 
the effect of the filings, entrv and cancellation of entry, 
made prior thereto. And to determine the first of the 
two questions it is necessary to determine the following 



preliminary propositions: i — the effect of fixing the 
general route of the road ; 2 — the effect to he given to the 
tiling of the declaratory statements of A.J. Wetter, Wil- 
liam M. Scott, Jerome .S. Click and Rohert C. Wallace; 
3 — The effect to be given to the attempted homestead 
entry of William H. McLean, made May 3, 1S72; 4 — the 
effect of the cancellation of such entry, made September 
1 1, 1S79; 5 — ^^'^^ effect of definitely fixing the line of said 
road, and filing a plat thereof in the office of the commis- 
sioner of the general land office; 6 — the effect of the sub- 
sequent entry of said lands by Maria McLean, March 15, 
1SS3. 

Although the court below did not pass upon the vari- 
ous propositions involved in the first question, but based 
its decision on an adverse determination of the second, yet 
as it is the duty of this court to afiirm the decree, regard- 
less of the correctness of the particular ground upon 
which it was based, if in equity the demurrer should have 
been sustained, it is necessary to discuss here all the propo- 
sitions involved, whether passed upon by the court below 
or not. The specification of errors accordingly includes 
errors alleged to have been committed in the court below 
by faihng to determine the propositions involved in the 
first question in favor of the complainant, as well as errors 
claimed to have been committed by the adverse determina- 
tion of the propositions involved in the second question. 



SPECIFICATION OF ERRORS. 

The appellant hereby assigns the following as errors 
committed by the court below in the determination of this 
cause, and the rendition of the decree herein. 

(0 

The said court failed and declined to hold that said bill 
showed the lands described therein were reserved from 
sale, pre-emption or entr\- from and after February 21, 
1872, except by complainant. 

The said court failed and declined to hold that said bill 
showed the pre-emption filings of A. J. Wetter, Wil- 
liam A. Scott, Jerome S. Glick and Robert C. Wallace, 
were null and void, and were, February 21, 1S72, expired 
filings and did not constitute a claim or right to tnc land 
described therein. 

(3) 

The said court failed and declined to hold that said bill 
showed that complainant duly accepted the terms, condi- 
tions and impositions of the said act of congress approved 
Julv 2, 1S64; that February 21, 1872, complainant duly 
fixed the line of general route of its said road extending 
through Montana; that said land was on and within forty 
miles of said line of general route; and was, February 21, 
1872, non-mineral public land to which the United States 
had full title, not reserved, sold, granted, or otherwise 
appropriated, and free from pre-emption or other claims 
or rights. 



(4) 

The said court failed and declined to hold that said 
bill showed the homestead entry of said land by William 
H. McLean, May 3, i S72, in said bill described, was null 
and void and totally without effect. 

(5) 

The said court failed and declined to hold said bill 
showed the lands described therein were reserved from 
sale, pre-emption or entry, except by complainant, from 
and after September 11, 1S79. 

(6) 

The said court failed and declined to hold said bill 
showed that complainant definitely fixed the line of its 
said railroad extending opposite to and past said premises 
in said bill described, and filed a plat thereof in the office 
of the commissioner of the general land office July 6, 1882 ; 
that said land was then non-mineral, public land, to which 
the United States had full title, not reserved, sold, granted, 
or otherwise appropriated, and free from pre-emption or 
other claims or rights ; was on and within forty miles of 
the said line of definite location ; and that said complainant 
on that day acquired the legal title thereto. 

(7) 

The said court failed and declined to hold said bill 
showed that complainant had duly completed and con- 
structed its said railroad and telegraph line past said land 
in said bill described, and was entitled to a patent 
therefor. 



10 

(^) 

The said coui-f failed and declined to hold said bill 
showed that March 15, 18S3, at the time said Maria 
McLean applied to purchase said land, as in said bill set 
forth, and at the time she was allowed to purchase the 
same, and June 17, 18S7, at the time a United States 
patent was issued to her therefor, said land was owned by 
complainant ; and that said patent was issued wrongfully 
and without authority of law, and was and is a cloud upon 
complainant's title to said land. 

(9) 

The said court failed and declined to hold said bill 
showed that npne of s;iid defendants took any right, title 
or interest in and to saitl lands, or any part thereof, under 
and by \irtue of said patent, or of any of the deeds or con- 
veyances thereunder. 

(10) 

The said court failed and declined to hold said bill 
showed the said j^atent and deeds of conveyance there- 
under were null and void, and a cloud upon complainant's 
title, which complainant was entitled to have removed by 
a court of equity, 

(") 

The said court held complainant's said bdl did not 
show that complainant was in possession of the premises, 
or any part thereof, described in said bill. 

(12) 

The said court held complainant's said bill did not 
show that it was entitled to equitable relief as prayed for. 



11 

for that it did not show possession of said premises in 
comphiinant. 

(13) 

The said court held said bill of complaint insufficient 
to entitle complainant to the relief prayed for, unless it 
appeared by said bill that complainant was in possession 
of said premises. ' 

(H) 

The said court failed and declined to hold that it ap- 
peared from said bill that possession was unnecessary to 
the maintenance of said action. 



12 

BRIEF OF ARGUMENT. 

First. 

The first question presented for consideration 
IS, What is the effect, under the act of July 2, 
1864, of fixing the general route of appellant's 
road ? 

The sixth section of the act jDrovides : "That the presi- 
dent of the United States shall cause the lands to be sur- 
veyed for forty miles in width on both sides of the entire 
line of said road, after the general route shall be fixed, and 
as fast as may be required by tiie construction of said rail- 
road ; and the odd sections of land hereby granted shall 
not be liable to sale, or entry, or pre-emption before or 
aftei" they are surveyed, except by said company, as pro- 
vided in this act." We contend the legal effect of this 
section is to forbid the sale, pre-emption or entry of the odd 
numbered sections of non-mineral, public land, not reserved, 
sold, granted, or otherwise appropriated, and free from 
pre-emption or other claims or rights, within fort\- miles 
on each side of the line of general route, after the general 
or preliminary route shall be fixed, by filing a map thereof 
Avith the commissioner of the general land office. 

The intention of congress in enacting a law, as gathered 
from the statute, is the law. That intention must be de- 
rived from the words and language of the act. The con- 
struction, however, must be on tlie entire statute ; not on 
a section, sentence or phrase standing alone ; and where 
one phrase is susceptible of two constructions, and the 
language of another part is clear and definite, and consis- 
tent with one of the two constructions of which the foi"mer 
part is susceptible, but is opposed to the other, that con- 



13 

struction should lie adopted which will render all parts of 
the statute harmonious. 

Alexander v. \Vorthi)igto>i^ 5 Md., 485. 

Sutherland on Stat. Const, sec. 245, et seq. 

.Vpplying these elementary rules of construction, the 
meaning of the sixth section of the act of July 2, 1S64, is 
rendered too clear for reasonable controversy. The term 
"general route" had, at the time this act was passed, a 
w'ell defined technical meaning in land grant terminology. 
It meant, in contradistinction to "definite route," a j^re- 
liminary line approximating the line of final or definite 
location. It had lieen the custom from the earliest times, 
as soon as a grant was made by congress, to aid internal 
improvements, of lands to be taken along some line the 
exact location of which was not determined in the act, to order 
withdrawals of the lands before such lines were definitely 
determined, along apreliminary line of probable, or approxi- 
mate, route, to preserve them from adverse disposition 
prior to the final and definite location of the line : 

Withdrawal oi-dered September 2S, 1S2S, on line of 
canal from Dayton to Lake Erie. 

Withdrawal of lands on line of proposed railroad from 
Brandon, in Mississippi, to Montgomery, in Alabama, 
ordered August 19, 1853. 

Withdrawal of lands on line of proposed railroad from 
Shreveport, La., to Vicksburg, Miss., ordered December 
17, 1S53. 

Withdrawal of lands on line of proposed railroad from 
Gaines Landing, Ark., to boundary line of Texas, ordered 
January 5, 1S54. 

Withdrawal of lands on line of proposed railroad to con- 
nect the Chattanooga with the Central railroad of Miss- 
issippi at the Mobile & Ohio road, ordered January 24, 
1854. 



14 

Withdrawal of lands on probable route of the proposed 
" North Missouri Railroad," ordered March 28, 1S54. 

Withdrawal of lands on probalile route of Iron Moiui- 
tain & Mississippi River Railroad, ordered June 8, 1S54. 

Withdrawal of lands on probable route of road under 
act of congress granting lands " to aid the Territory of 
Minnesota in the consti'uction of a railroad therein," ap- 
proved June 29, 1854, ordered July 15, 1S54. 

Withdrawal of lands under act granting lands to the 
State of Iowa to aid in construction of railroads, ordered 
May 15, 1S56. 

Withdrawal of lands under act of June 3, 1856, grant- 
ing lands to Wisconsin to aid in the construction of rail- 
roads, ordered June 12, 1856. 

Withdrawal of lands under act of August 11, 1856, 
granting lands to the State of Mississippi, Alabama and 
Louisiana, to aid in the construction of railroads, probably 
falling within limits of grant, ordered August 15, 1856. 

Order of withdrawal made April 9, 1857, to protect 
lands falling within probable line of routes under act 
approved March 3, 1857, granting lands to the Territory 
of Minnesota to aid in the construction of railroads. 

Withdrawal of lands falling within probable limits 
of grant to State of Alabama to aid in the construction of 
railroads, by act appro\ed March 3, 1857, ordered April 
21, 1857. 

Withdrawal of lands on probable line of Atchison, 
Topeka & Santa Fe railroad, ortlered March 19, 1863. 

Many other instances could be cited, for a more particu- 
lar statement of which see Land Office Report for 1886, 
pp. 136-189. 

The existence of the practice was well known to, and 
approved of by congress: 

Act of March 27, 1854, 10 Stat. 269. 
Wolcott y. Des Moines, 5 Wall, 681, ( L. eti. 691 ). 
WilUains y. Baker, 17 Wall. 144. (L. ed. 563). 



15 

8 Op. Atty. Gen'l. 246. 

16 " " " 87. 

18 " " " 573. 

N. P. R. R. Co. V. St. P. M. cC- A/. Ry. Co. 26 Fed. 
562. 

In the Pacific Railroad's grant of odd numbered sections 
within ten miles of the line of road, hy the act of July i, 
1862, 12 Stat. 489, conoress enacted: 

"That within two years after the passage of this act 
said company shall designate the general route of said 
road, as near as may be, and shall file a map of the same 
in the department of the interior, whereupon the secre- 
tary of the interior shall cause the lands within fifteen 
miles of said designated route or routes to be withdrawn 
from pre-emption, private entry, and sale; and when any 
portion of said route shall be finally located, the said 
secretary of the interior shall cause the said lands herein- 
before granted to be surveyed and set off as fast as may 
be necessary for the purposes herein named." 

By the act approved July 2, 1S64, 13 Stat. 356, this 
provision was amended by substituting the word "twenty- 
five" in lieu of the word "fifteen." 

These acts did not initiate a new proceeding in the 
department, but rendered compulsory an existing custom. 
They stamped with legislative approbation an existing 
well known distinction between lines of "definite loca- 
tion" and of "general route." They fixed a legislative 
definition, confirmatory of the existing departmental one, 
upon the latter term, sharply distinguishing it from the 
former. "The internal improvement grants are all of the 
same general character, having the same great object in 
view, and are all part of one grand system, and laws having 
in view the same general purpose should be construed /;/ 
par/ materia., unless the intention of the legislature is 
plainly shown to be otherwise." 



16 

N. P. R. R. Co., decision rendered hy Secretary 

Lamar, August 15, 18S7. Unpublished. 
JV. P. R. R. Co. V. Burden, ct al, 46 Fed. 603. 

And it is to be presumed that the term "general route" 
is used in the Northern Pacific act in the settled meaning 
it had acquired bv departmental usage and congressional 
enactments in legislation in pari materia therewith; that 
is of an approximate or preliminar}- line. 

Sutherland on Stat. Const., sec. 255-6. 

Endlich on Interp. of Stat., sec. 53, 365, 367-8-9. 

Sedgwick on Stat. Const. 225, (2 ed.). 

And this conclusion is strengthened when, examining the 
third section of the act, we find that congress there char- 
acterizes the line of dcji)iite location by the terms constant- 
ly appropriated to that purpose, viz : the line "definitely 
fixed." 

How is this preliminary or "general" route fixed ? 
The act does not, in so many words, require that the gen- 
eral route shall be fixed, but it assumes that it shall be. As 
to the method of fixing it, the act is silent. This silence 
as to matter of details compels us to resort to legislation 
in pari mater ja with this, to ascertain the manner of fixing 
the route. 

Portage Land Grant, 14 Op. Atty. Gen. 648. 

The first section of the act of September 20, 1850, 9 
Stat. 466, granting lands to aid in the construction of a 
railroad, provides that " a copy of the survey of said road 
and branches, made under the directions of the legislature, 
shall be forwarded to tlie j^roper local land offices respect- 
ively, and to the general land office at Washington City." 
The second section grants the alternate sections for six 
sections in width on each side of the road, to aid in its 



17 

construction, luit provides thiit "'in case it shall appear 
that the United States have, when the line or route of said 
road and branches is definitel}' fixed by the authority 
aforesaid, sold any part of any section hereby granted, or 
that the right of pre-emption has attached to the same," 
indemnit}' shall be selected therefor. See also act of June 
lo, 1S52, 10 Stat. 9 ; act of February 9, 1S53, 10 Stat. 155. 

Under these acts the line of the road was "fixed" by 
filing a plat thereof in the land office. After the act of 
1853 the wording of railroad land grant acts was slightly 
changed, and, until the Union Pacific grant of July i, 
1S62, in no case, in terms, required the filing of a map of 
the line in the land oflice. Act of June 29, 1S54, 10 Stat. 
302 ; act of May 15, 1856, 1 1 vStat. 9 ; act of May 17, 1856, 
II Stat. 15 ; act of June 3, 1856, 11 Stat. 17 ; id. 18 ; id. 
20; id. 21 ; act of August 11, 1S56, 11 Stat. 31 ; act of 
March 3, 1857, 11 Stat. 195; also in all, or nearly all, of 
the acts between Jul)' i, 1862, and July 2, 1S64; act of 
March 3, 1863, 12 Stat. 772 ; act of May 5, 1S64, 13 Stat. 
66 ; act of July i, 1S64, 13 Stat. 339. 

These acts granted the alternate sections for so many 
sections in width on each side of the road, with a right of 
indemnity for such lands as it was found the United 
States had disposed of "when the lines of the roads are 
definitely fixed." The method of "fixing" the lines is 
not prescribed, but, as in the case of "fixing" the general 
route of the Northern Pacific, is left to be gathered from 
the legislation /'// pari materia. Tliis c[uestion early came 
up for determination, and it was riderl, and has since been 
held, that, construing these acts with the earlier acts in 
pari //latcria., the route must be consideretl as fixed when 
plat thereof was filed in the land ofiice. 

Iowa Railroad Claims, 8 Op. Atty. Gen. 392. 
K. P. Ry. Co. V. Diiii/iicycr., 113 U. S. 629 (L. ed. 
1124). 



18 

These decisions both detcnnine the manner in which 
the route of a raih-oad, under these acts, is to be "fixed" 
when the act itself is silent, and show the reasonable 
source of that rule in the legislation i)i pari materia there- 
with. And apphing this rule to the sixth section of the 
Northern Pacific act, we find that section contemplates 
the filing of a map of the preliminar\- line of the road in 
the general land office. Such is the necessary meaning 
of the phrase "the general route shall be fixed." 

But while the sixtii section clearly contemplates the 
filing of a map of the preliminary line of route in the in- 
terior department, it contemplates something more ; it 
contemplates a reservation of certain lands described as 
"the odd sections of land hereby granted" from sale, pre- 
emption, or entry except bv the railroad company. What 
are the "odd sections of land hereby granted," which are 
to be reserved? The literal meaning of the phrase "land 
hereby granted," if unmodified, imquestionably would be 
the identical lands to wiiich the company acciuires title 
under the act ; that is, the odd numbered sections of non- 
mineral public land to which the United States has fidl 
title, not reserved, sf)ld, granteil, or otherwise appropri- 
ated, and free from pre-emption or other claims or rights 
at the time the line of the road is definitely fixed and a 
plat thereof filed in the office of the commissioner of the 
general land office, on each side of the line of definite lo- 
cation, within the limits of the grant. But the rules of 
construction forbid us apphing such literal meaning to 
these words, if they are susceptible of another reasonable 
construction ; for by so doing we render of no effect other 
important provisions in the same section. 

Endlich on Interp. of vStat., sec. 35. 

Sutherland on Stat. Const., sec. 245, et scq. 



19 

The phrase in the statute is : "the odd sections of land 
hereljy. granted." Land in odd sections only is o-ranted 
by the act ; and if the words "land hereby granted" are 
taken in their literal sig-nification, the words "odd sec- 
tions" are unnecessary and surplusage. They are deprived 
of any effect whatsoever, becoming a mere repetition of 
what is expressed in the words "land hereby granted." 

A construction of this section as simply forbidding the 
sale, pre-emption, or entry of the odd numbered sections 
on each sitle of the line of definite location, from and after 
the time that line should be fixed and a plat thereof filed 
in the office of the commissioner of the general land office, 
renders the entire prohibitory clause surplusage and un- 
necessary, a useless repetition of what is necessarily con- 
tained in the third section of the act. The grant being in 
praescnti, vesting in the grantee the legal title, to be there- 
after attached to the specific lands upon their identification 
by the definite location of the line of the roatl, these lands 
are necessarily withdrawn from sale, pre-emption, or entry 
after that event, because by that act they become the pri- 
vate property of the grantee, and this independently of 
the provisions of the sixth section. 

The phrase "lands hereby granted" is susceptible of a 
second interpretation, harmonizing all parts of the statute 
and rendering the statute in full accord with the practice 
of the department and the policy of the government as 
indicated in the Union Pacific acts. Not all of the odd 
numbered sections are granted, but those only that are 
non-mineral, public lands, towhich the United St:ites have 
full title not reserved, sold, granted or otherwise appro- 
priated, and free from pre-emption or other claims or 
rights. These are the odd sections of "land hereby 
granted." And the sixth section forbids the initiation of 
claims or rights upon lands in this condition only. It is 



20 

in this sense, we think, the phrase is used. The intention 
of congress was not to prevent the perfecting of such 
claims and inchoate rights as, not yet reaching the dignity 
of vested rights, were suhject to the jDOwer of congress, 
but to prevent the initiation of any and all new claims or 
rights to these odd sections. To express this intention 
without repeating the phrases used in the third section to 
describe the condition of the title and the character of the 
soil of lands granted, the words "hereby granted" were 
used. The entire section must be construed precisely as 
though it read : 

"The president of the United States shall cause the 
lands to he surveyed for forty miles in width on both 
sides of the entire line of said road after the map of the 
approximate line thereof shall be filed in the general land 
office, and as fast as required by the construction of said 
road ; and the odd sections of non-mineral, public land, to 
which the United States have full title, not reserved, sold, 
granted, or otherwise appropriated, and free from pre- 
emption or other claims or rights, shall not be liable to 
sale, pre-emption or entry before or after they are sur- 
veyed, except by said company as provided in this act." 

This prohiliition from sale, pre-emption or entrv is to 
be effective from and after the fixing of the general route. 
The intimate connection between the provisions for fixing 
the general route of the road and for the reservation of 
the odd numbered sections, bound up into one sentence as 
they are, forbids their entire disconnection and treatment 
as totally independent of each other. Indeed, unless the 
lands were preserved by a prohibitorv reservation, it 
would be unreasonable to suppose the company would file 
a preliminary line of the road at all, since such action 
would but give notice to the world at large where the 
line would run, ami inevitably cause settlers to rush in 
and at once appropriate the desirable lands, to the com- 
pany's loss. Congress was aware of this, yet contempla- 
ted in its legislation the filing by the company of a map 



21 

of its preliminary line. And as in the same sentence 
they incorporate a prohibition from sale, pre-emption or 
entry, a prohibition which is useless surplusage unless it 
contemplates a reservation of the lands on such pix-limi- 
uary line, the inference is almost irresistible that the inten- 
tion was tr> prohibit the sale, pre-emption or entry of the 
odd numbered sections defined by the fixing of the gen- 
eral route from and after the time it was fixed. And 
viewing this provision in the light of the settled practice 
of the department, and of the policy of congress, as shown 
in the analogous Union Pacific grant, the construction for 
which we contend is placed beyond question. 



DEPARTMENTAL CONSTRUCTION. 

July 31, 1S70, the companv filed with the interior de- 
partment two maps showing the line of general route. 
August 13, 1S70, these maps were approved by the secre- 
tary so far as they showed the general route through 
Minnesota, Wisconsin and a portion of Washington ; and 
the lands along that portion of the general route ordered 
withdrawn. 

The maps were not approved so far as they indicated 
that portion of the route extending through Dakota, Mon- 
tana and Idaho, and a portion of Washington. The com- 
pany acquiescing in this action by the department, there- 
after, and prior to February 21, 1872, transmitted to the 
secretary of the interior, for his appro^-al, a map of the 
general route of that portion of its road extending through 
Dakota, Montana, Idaho, and to a point in Washington 
where it intersected that poition of the former line of 
general route that had been accepted by the department. 



22 

This last line was accepted by the secretaiy. February 
2 1, 1872, he transmitted it, marked "map of the prelimi- 
nary route of the Northern Pacific railroad," to the com- 
missioner of the general land office, and ordered the odd 
numbered sections on and within forty miles on each side 
of said line withdrawn from sale, pre-emption or entry. 
The same day the map was filed in the commissioner's 
office. Almost immediately thereafter the question of the 
proper interpretation of section six, under which the right 
to file this map was claimed, became a matter of great in- 
terest in the department. This question having been 
squarely presented to the secretary of the interior in a 
case pending before him, he referred the matter to the 
attorney general for his opinion ; and March 15, i873i 
Assistant Attorney Geneial Smith, in an elaborate opin- 
ion, held that the effect of section six was to forbid the 
pre-emption, sale, or entry of public lands in the odd 
numbered sections within the prescribed distance on each 
side of the line of general route, from and after the time 
such route was fixed. 

Copp's Pub. Land Laws, 377, (1 ed.) 

March 22, 1S73, Secretary Delano adopted this con- 
struction as the correct exposition of the law. From that 
time until the present, this construction has obtained in 
the interior department. 

EngchrctsoN v. N. /'. R. R. Co., i C. L, O. 51. 
Ernsbcrgcr v. N. P. R. R. Co., 3 C. L. O. 85. 
Hogland V. N. P. R. R. Co., 5 C. L. O. 107. 
A". /'. A*. R. Co. V. /^//7;;//r/, decided by the secretary, 

Sept. 19, 1874. 
Classification of Railroad Grants, 2 Copp's L. L. 866, 

(2 ed.) 
7rcpp V. A'. /'. A'. A'. Co., i L. D. 380 
Haves V. Parker, et al. 2 L. D. 554. 



23 

Mo;iag/c V. .V. P. R. R. Co., 2 L. D. 539. 
A; P. R. R. Co. V. Hopkins d!- Parker, 2 L. D. 569. 
.\: /'. R. R. Co. V. B/fr/, 3 L. D. 490. 
Mansfeld v. .V. P. R. R. Co., 3 L. D. 537. 
.V. P. R. R. Co. V. McLean, 5 L. D. 529. 
W/iifney v. .V. P. R. R. Co., 5 L. D. 343. 
Atlantic & Pacific R. R. Co., 6 L. D. S6. 
.V. P. R. R. Co. V. Va^^o■/^n, 6 L. D. 11. 
.V. /'. R. R. Co., V. B/n-ns, 6 L. D. 21. 
.y. P. R. R. Co. V. Martin, 6. L. D. 657. 
X. P. R. R. Co. V. Guilford Miller, 7 L. D. 100. 
Barr v. .V. P. R. R. Co., 7 L. D. 235. 
N. P. R. R. Co. V. Bozcman, 7 L. D. 23S. 
X. P. R. R. Co. V. Evans, 7 L. D. 131. 
.y. p. R. R. Co. V. Anrys, S L. D. 362. 
.y. P. R. R. Co. V. Urqiihart, 8 L. D. 365. 
McClure V. ^y P. R. R. Co., 9 L. D. 155. 
Harris v. .y P. R. R. Co., 10 L. D. 264. 
Gale V. .y P. R. R. Co., 10 L. D. 307. 
Ofzitt V. ^y p. R. R. Co., 9 L. D. 407. 
^y p. R. R. Co. V. Roberts, 10 L. D. 427. 
.y P. R. R. Co. V. Stovcnour, 10 L. D. 645. 
N. P. R. R. Co. V. Brou-n, 10 L. D. 662. 
McAi-thnr v. .y P. R. R. Co., 1 1 L. D. 92. 
.y P. R. R. Co. V. Marshall, 11 L. D. 443. 
.y P. R. R. Co. V. Miller, II L. D. 482. 
^y P. R. R. Co. V. Sales, 12 L. D. 299. 
A'. P. R. R. Co. V. Harris, 12 L. D. 351. 
^y p. R. R. Co. V. Ambers, 12 L. D. 395. 
St. P., M. iH M. Ry. Co. V. Lund, 12 L. D. 39S. 

Upon this theory hundreds of cases have been adjudi- 
cated in the district and general land offices. .Thousands 
of acres have been patented to the railroad company. 



24 

Purchasers, rel\'ing upon these decisions, have invested in 
thousands of acres of land, both patented and unpatented. 
Hundreds of farms have been made and homes grown up, 
founded on faith in these decisions, which, if reversed, 
w^ill be hopelessly lost. The railroad company has 

mortgaged its grant and floated its bonds issued under such 
mortgage, upon faith in this construction. Under such 
circumstances only the most clear and palpable case of 
error would justify the co'urt in overruling that practical, 
unifi:)rm construction, continued for so manv vears. Were 
the question one of doubt, which we do not think it is, it 
would be the duty of the court to follow this departmental 
construction. 

[\ s. v. y;. a- .1/. r. r. r. Co., 98 u. s. 341. 

( L. etl. 200) 
K. P. Rv. Co. V. A. T. d- S. F. R. Co., 1 13 U. S.414. 

(L. ed. 796. ) 
6'. ^^. V. Gra/tan/, 1 10 U. S. 221. ( L. ed. 127.) 
Brozvu V. U. S., 113 U. S. 56S. ( L. ed. loSo. ) 
U. S. V. Moore, 95 U. S. 760. (L. ed. 589.) 
H. & D. R. R. Co. V. Whitjicy, 132 U. S. 357. 

(L. ed. 367.) 
U. S. V. HiU, 120 U. S. 169. (L. ed. 627.) 
U. S. V. Piigh,(.)(i) U. S. 269. (L. ed. 322.) 
The Laura, 114 U. S. 416. ( L. ed. 147.) 
Robertson v. Do~iV)iiiig, 127 U. S. 607. ( L. ed. 271.) 
U. S. V. Philbrick, 120 U. S. 59. (L. ed. 561.) 
Edzi'ards'' Lessee v. Darbv, 13 Wheat. 206. 
U. S. V. U. P. Rv. Co., 37 Fed. 555. 



25 



CONSTRUCTIOX BY THE COURTS. 

Not only has the interior licpartmcnt constantly con- 
strued the sixth section of liiis act of July 2, 1S64, as 
making a withdrawal from sale, pre-emption or entry, ex- 
cept by the company, of the odd sections on the line of 
general route from the lime such line is fixed, but tin- 
courts have, with almost e([ual uniformity, placed the 
same construction upon the act. 

The first time this question appears to have been deci- 
ded bv the courts is in A\ /'. R. R. Co. v. Piroi/to. :; 
Dak. 220 s. c. 14 N. W. 103, decided November jo, 
1SS2. 

It was next passed upon b\' the supreme court of Mon- 
tana in X. P. R. R. Co. V. /.///)', 9 Pac. 1 16, decided Jan. 
7, 1S86. 

The case of y. P. R. R. Co. v. Piroiito supra ha\ing 
been appealed to the supreme court, the decision of tlie 
lower court on this point was affirmed November 15, 1SS6. 
Buttz V. .v. P. R. R. Co., I 19 U. S. 73 (L. ed. 336). 

January 18, 1SS7, the supreme court of Montana, in ('. 
S'.v. N. P. R. R. Co., 12 Pac. 770, again decided this 
(juestion in accordance with prior decisions. 

March 14, 1 887, Attorney General Garland, in A'^ T'. A'. 
R. Co. V. Miller, 18 Op. Atty. Gen. 571, ruled this ques- 
tion as it had been ruled by every preceding tribunal. 

November 28, 1S87, Mr. jxistice Field, in Denny \. 
Dodson, 32 Fed. 909, after discussing the question, fol- 
lowed the preceding- decisions, Judge Deady concurring 
as to this proposition. 

In U. S. V. N. P. R. R. Co., j^\ Fed. 847, Judge Saw- 
yer adopted as correct the uniform preceding construc- 
tion. 



26 

In SL P. S P. R. R. Co. v. .'V. P. R. R. Co., 139 U. 
S. 17, decided March 2, 1891, the supreme court affirmed 
its ruHng in the Buttz case, supra. 

In N. P. R. R. Co. V. Bardcn, 46 Fed. 604, decided 
June 12, 1S91, Judge Sawver adopted and followed the 
preceding rulings. 

So uniform and strong are these authorities that we 
should deem a reference thereto sufficient without further 
discussion of the questions involved, were it not that in 
the case of ^\ P. R. R. Co. v. Sanders, 46 Fed. 239, de- 
cided April 16, 1S91, the United States circuit court for 
the District of Montana held these decisions to be errone- 
ous ; that the sixth section of the Northern Pacific act did 
not create a reservation of the odd numbered sections on 
each side of the line of general route after that route was 
fixed ; and that it onl\- forliadc the making of sales and 
the initiation of entries upon the odd numbered sections 
after they had become the private property of the grantee 
by fixing the line of definite location ; thus rendering the 
entire prohibitory clause in this section a useless repetition 
of what was necessarily contained in the third section of 
the act. The court in its opinion referred to but two of 
the prior decisions on the subject, the case of De7i)iy v. 
Dodsoti, and Bnttz v. JV. P. R. R. Co. supra. Refering 
to the case of Dciinv v. Dodson, the learned judge held 
that, though decided by the circuit justice in the same cii- 
cuit, he was under no obligations to follow it, ignoring 
the rules of judicial comity so well settled in : 

Goodyear Dental I'ulcan Co. v. WiJIis, 1 Flippin, 

390- 
Reed \. Atlantic it- Pacific R. R. Co. 21 Fed. 283. 

Washburn el al. v. Gould, 3 Stor}', 133. 

America?t Wood Paper Co. v. Fiber Disintegrating 

Co. 3 Fisher, 363. 



27 

Goodyear v. Berry ^ 3 Fisher, 443. 

"niluighani V. Mitchell^ 4 Fisher, 634. 

Goodyear Dental Co. v. Root., 6 Pat. Office Gazette, 

154- 
Worsxvick Alnfg. Co. v. C/'tv of PJiiladelphia., 30 

Fed. 625. 
Celluloid ^Infg. Co. v. Xylonite Brush d- Comb Co. 

27 Fed. 750. 
ThoDipson V. E. P. Donnell Co. 40 Fed. 383. 
Central Trust Co. v. Wabash., etc. R. Co. 29 Fed. 618. 
Herman on Estoppel, sec. 113, 114. 
Lake Superior., etc. Co. v. Cunningham., 44 Fed. 588. 

vSpeaking of the case of Butfz v. N. P. R. R. Co. the 
learned judg^e, with somewhat scant regard for the courtesy 
which the United States Supreme Court might fairl}' claim 
as its due, and with still scantier evidence upon which to hase 
such charge, boldly charges that that court, in the rendition 
of its opinion, "had in mind more the provisions of the act 
making the grant to the Union Pacific and Central Pacific 
Railwaj' Companies * * * * than the act making 
plaintiff's grant." And in conclusion he holds that the 
decision in that case was a dictum and not binding. This 
conclusion ignores the definition of a dictum. The court 
below, in the Buttz case, had held the Indian title to the 
land in controversy was extinguished May 2, 1873, over a 
year after the general route of the road opposite thereto 
was fixed, and twenty-four days before the filing of the 
map of definite location. (A'. P. R. R. Co. v. Piroitto., 
14 N. W. 105). No error was assigned as to this portion 
of the decision. The principal errors relied upon in the 
appeal were the ruling that the fact that the country was 
"Indian country" was not sufficient to exclude it from the 
grant ; and that the filing of a map of the general route 



28 

in the office of the commissioner of the general land ofhce 
February 21, 1872, was sufficient to prevent the subse- 
quent initiation of claims or rights thereto by parties other 
than the railroad company. After determining the first 
of these propositions in favor of the company's contention, 
a determination of the second, as it was determined, would 
be conclusive of the case, whatever time the line of the 
road was definitely fixed. This proposition was presented 
by the record, it was fully argued by counsel, and was 
squarely decideil by the court. Under such circumstances 
the decision on this point is in no sense a dictum^ although 
another jDoint was also determined which was equally con- 
clusive of the case. The decision on this question was as 
much a part of the judgment of the court as was that on 
any of the several other matters presented and decided. 

Railroad Co. v. Schuttc, 103 U. S. 143 (L. ed. 327). 

Ha-ucs v. Co?itra Costa Wafer Co. ^ Saw. 395. 

Starr v. Stark, 2 Saw. 639. 

Clark v. Thomas., 4 Heisk, 419. 

Alexander v. Worthington., 5 Md. 483. 
The case of St. P. & P. R. R. Co. v. N. P. R. R. Co. 
139 U. S. I, is a decision made under similar circumstances. 
In neither of these cases is the decision as to the question 
under consideration dictum. It is conclusive and binding 
as to this question, upon all courts. And that section six 
of the Northern Pacific act does forbid the sale, pre-emp- 
tion or entry of the odd nimibered sections on each side 
of the line of general route, after that general route is 
fixed, can no longer, with propriety, be cjuestioncd. 



29 



II. 



What, if any, is the effect to be (hven to the 

DECLARATORY STATEMENTS FILED BY A. J. WeTTER, 

William M. Scott, Jerome S. Glick, and Robert 
C. Wallace upon portions of this Land ? 

The filing by A. J. Wetter for the northwest quarter 
of the northwest quarter of section 17, with other lands, 
was made May 13, 1868. The township plat including 
this land was not returned to and filed in the district land 
ofiice until July 23, 186S, over two months after the filing. 
Land is not, in contemplation of law, surveyed land prior 
to the filing of the township plat in the district land office. 
Under the law as it stood at that time, the settler upon 
unsurveyed land was required to file his declaratory state- 
ment within three months after the date of the receipt at 
the district land office of the approved plat of the town- 
ship embracing such pre-emption settlement. 

Act approved March 3, 1843, 5 Stat. 619. 

Act approved May 30, 1862, 12 Stat. 409. 
And a filing made before the return is in violation of 
law, is wholly unauthorized and a nullity. 

Lansdalc v. Daniels^ 100 U. S. 113 (L. ed. 5S8). 

Daniels v. Laiisdale^ 43 Cal. 42. 

I Lester's Land Laws, 400. 

Scott V. Western Pacjic R. R. Co. Copp's L. L. 420 
(led.). 

U. S. V. Curtner, 38 Fed. 9. 

Helen M. Cameron, 10 L. D. 195. 

As no other claims or rights to this forty acres inter- 
vened prior to fixing the general route of the road, Feb- 
ruary 21, 1872, it was on that day public land, and the 



30 

sixth section of the Northern Pacific act foibade the ini- 
tiation of such rights or claims thereto thereafter. 

The declarator}' statements filed b}- Scott, Glici'; and 
WaHace were filed after the land was surveyed ; and the 
question presented is whether the mere existence of filings 
upon the records conclusively determines that the land is 
not public land, free from pre-emption or other claims or 
rights ? This question presents itself in two aspects : 
first, the effect of these filings where the time has not 
elapsed within which the filers are required to enter the 
land; second, their effect where such time has elapsed. 

This land, as is all land in the State of Montana, is "un- 
offered ;" that is, it has never been proclaimed for sale. 
Of this fact the court takes judicial notice under the statute 
of Montana. Section 643, Compiled Statutes of Montana 
provides : 

"Courts take judicial notice of the following facts 
****** Public and private official acts of the 
legislative, executi\'c an<i judicial departments of this terri- 
tory, and of the United .States." 

U. S. v. Williaiiis^ 6 Mont. 379. 
Ellino- V. Thcxton^ 16 Pac. 934. 

Section 10 of the act of congress appro\ed September 4, 
1841, 5 Stat. 455, provides that "from and after the pass- 
age of this act, every person being the head of a family, 
or widow, or single man, over the age of twenty-one years, 
and being a citizen of the United States, or having filed his 
declaration of intention to become a citizen, as required by 
the naturalization laws, who since the first day of June, 
A. D. eighteen hundred and forty, has made or shall here- 
after make a settlement in person on the public lands to 
which the Indian title iiad been at the time of such settle- 
ment extinguished, and which has been, or shall have been, 
surveyed prior thereto, and who shall inhabit and improve 



31 

the same, ami who has or shall erect a dwelling thereon, 
shall be, and is hereby, authorized to enter with the regis- 
ter of the land office for the district in which such land may 
lie, liy legal subdivisions, any number of acres not exceed- 
ing one hundred and sixty, or a quarter section of land, to 
include the residence of such claimant, upon pa\'ing to the 
United .States the minimum price of such land, subject, 
however, to the followiitg limitations and exceptions : No 
person shall be entitled to more than one pre-emptive 
right by virtue of this act ; no person who is the proprie- 
tor of three hundred and twenty acres of land in any state 
or territory of the United States, and no person who shall 
quit or abandon his residence on his own land to reside on 
the public land in the same state or territory, shall acquire 
any right of pi'e-emption under this act." 

Section I3 of the same act requires that "prior to any 
entries being made under and by virtue of the provisions 
of this act, proof of the settlement and improvement there- 
by required, shall be made to the satisfaction of the register 
and receiver of the land district in which such lands may 
lie." 

Section 13 requires "that before any person claiming 
the benefit of this act shall be allowed to enter such lands " 
he or she must make oath to certain things set forth in the 
section, among which is that he has not settled upon or 
improved the land to sell the same on speculation, but in 
good faith to appiopriate it to his, or her own exclusive 
use or benefit. 

Section 15 requires "that whenevei" any person has 
settled or shall settle and improve a tract of land, subject 
at the time of settlement to private entry, and shall intend 
to purchase the same under the provisions of this act, such 
person shall in the first case, within three months after the 
passage of the same, and in the last within thirty days next 



32 

after the date of such settlement, tile with the register of 
the proper district, a written statement, describing the hand 
settled upon, and declaring the intention of such person to 
claim the same under the jDrovisions of this act ; and shall, 
where such settlement is already made, within twelve 
months after the passage of this act, and where it shall 
hereafter be made, within the same period after the date 
of such settlement, make the proof, affidavit, and payment ^ 
herein required ; and if he or she shall fail to file such 
written statement as aforesaid, or shall fail to make such 
affidavit, proof, and payment within the twelve months 
aforesaid, the tract of land so settled and improved shall be 
subject to the entry of any other purchaser." 

Section 5 of the act of congress approved March 3, 
1843, 5 Stat. 619, provides "that claimants under the late 
pre-emption law, for lantl not yet proclaimed for sale, are 
required to make known their claims, in writing, to the 
register of the proper land office, within three months 
from the date of this act when the settlement has been 
already made, and within three months from the time of 
the settlement when such settlement shall hereafter be 
made, giving the designation of the tract, and the time of 
settlement; otherwise his claim to be forfeited, and the 
tract awarded to the next settler, in the order of time, on 
the same tract of land, who shall have given such notice, 
and otherwise complied with the conditions of the law." 

The filings of Glick, Scott and Wallace were made un- 
der this last act. These filings do not constitute an entry 
of the land. The entry is only made "upon paying to the 
United States the minimum price for such land." And 
as a condition precedent thereto the settler is required to 
"make proof of the settlement and improvement re- 
quired;" and to "make oath before the register and re- 
ceiver" of his or her qualifications. Twehe monthswere 



33 

allowed from the date of settlement in which to make the 
entry on offered lands; on unoffered lands the time was, 
by the acts referred to, limited only by the proclamation 
of the lands for sale; this last provision was, however, 
changed in 1S70, as we shall see. The declaratory state- 
ment, or notice of intention to claim the land, wasrequired 
to be filed on offered land within thirty days from settle- 
ment: on unoffered land, within three months from such 
time. The distinction, therefore, between the declaratory 
statement and the entry of theland, under the pre-emption 
law, is very marked. When an entry of the land is made, 
under the public land laws, whether pre-emption, home- 
stead, or other, the particular land entered is segregated 
from the mass of the public lands, and takes the character 
of private property. If the lands were public land be- 
fore the entry, after it they are private ]Droperty. 

Witherspoon v. Diaican^ 4 Wall. 3iS. (L. ed. 342.) 

Reservation of Lands for Public Uses, 17 Op. Atty. 
Gen. 160. 

Cornelius v. Kessel, 12S U. S. 456. (L. ed. 483-4.) 

Smith V. Ewing. 23 Fed. 742. 
Wilson V. Fine, 40 Fed. 52. 

Stiinson v. Clarke^ 45 Fed. 760. 

H. d' D. R. R. Co. V. Whitnay, 132 U. S. 357. 
(L. ed. 366.) 

If there be a defect in some of the integral parts of the 
entry, as if the affidavit be insufficient in its showing, or if 
the application be informal, or if the payment be not made 
in actual cash, the register and receiver are justified in re- 
jecting the application. But if, notwithstanding such de- 
fects, the application is' allowed by the land officers, and a 
certificate of entry is delivered to the applicant, and the 
entry is made of record, it immediately operates to reserve 
and appropriate the land. The entry may afterwards be 



34 

canceled on account of these defects by the commissioner, 
or, on appeal, by the secretary of the interior, or suspend- 
ed and the party notified to show by sujjplemental proofs 
a full compliance with the law, and on failure to do so the 
entry may then be canceled. But these defects do not 
render the entry a nullity, as would be an entry allowed 
by the land oificers without authority of law, as an cntr^■ 
upon land reserved from entry. They render the entry 
voidable only, as distinguished from a void entry; and so 
long as it remains a subsisting entry of record, whose le- 
gality has been passed upon by the officers of the land de- 
partment, it operates to reserve and appropriate the land. 

//. cO D. R. R. Co. V. Whitney, 133 U. S. 357. 
(L. ed. 366.) 

Reservation of Lands for Public Uses, 17 Op. Atty. 
Gen. 160. 

Until a voidable entry is canceled, neither a filing 
upon, or another entry of the land can be made. 

Simons v. Wag7icr, 10 1 U. S. 260 (L. ed. 91 1)- 
Reservation of Lands for Public Uses, 17 Op. Att}'. 

Gen. 160. 
Kate Cox, i L. D. 52. 
Wolf V. St7-uble, I L. D. 449. 
Whitney v. Maxxvell, 2 L. D. 98. 
Buttery v. Sprout, 3 L. D. 294. 
Henry Cliff, 3 L. D. 217-8. 

St. P. M. & M. Ry. Co. V. Forseth, 3 L. D. 446. 
Legaii V. ThoDias, 4 L. D. 441. 
Milton Tozvfisitc v. Gann, 4 L. D. 586. 
Nyman v. St. P. M. d- M. Ry. Co. 5 L. D. 396. 
Rudolph Nemitz, 7 L. D. 80. 
Grove V. Crooks, 7 L. D. 140. 
James A. Forward, 8 L. D. 528. 
Etnier v. Zook, 11 L. D. 452. 
Leary v. Manuel, 1 2 L. D. 345. 



35 

No such effect follows the fiHng of a declaratory state- 
ment. The declaratory statement is simply a brief writ- 
ten notice, giving the date of the alleged settlement, the 
description of the land, and announcing the intention of 
the settler to make future entry of the land. It is not 
verified, and does not call for the exercise of any judicial 
functions on the part of the land otficers. Its filing does 
not represent a determination upon their part as to any of 
the facts contained in the statement, as does the allowance 
of an entry. It does not necessitate the presence of the 
filer in the land office. It may be, and frequently is, 
transmitted to the land ofliice by niail. 

Commissioner's letter of October 23, 1S57. 

I Lester's Land Laws, 464. 

Land Office Report, for 18S5, p. 70. 

The only question the land officers are called upon to 
determine in filing a declaratory statement, is whether or 
not the land is public. They do not pass upon the quali- 
fications of the filer, or determine that he has made a 
settlement. In this respect the declaratory statement 
bears to the entry a relation somewhat analogous to that 
borne by a complaint to a final judgment. The form of 
declaratory statement prescribed by the department is as 
follows: 

^'I, , of , heing , did, on the 

day of A. D. iS , settle and im- 



prove the quarter of section number ,in 

township number of range number in 

the district of lands subject to sale, at the land office at 

, and containing acres, which land has 

not yet been offered at public sale, and thus rendered sub- 
ject to private entry ; and I do hereby declare my inten- 
tion to claim tlie said tract of land as a pre-emption right, 
under the provisions of said act of 4th September, 1841. 
Given under mv hand, this day of A. D. iS 

La. b. 

In presence of 



36 

I Lester's Land Laws, 376. 
The statements regarding the qualifications of the de- 
clarant are not required by law, and are not an essential 
part of the notice. The statement contains no informa- 
tion whatsoever as to whether the declarant is the owner 
of 320 acres of land in any other state or territor}-, or has 
abandoned land of his own in the same state or territory 
to make the required settlement. And it is no evidence, 
either of the facts it does recite, or of the qualifications of 
the settler, as against the government or an}' one else. 
Ban- V. N. P. R. R. Co. 7 L. D. 232. It does not operate 
to reserve or appropriate the land described, or to take it 
out of the category of public lands. A dozen contemjDO- 
raneous filings may be made and exist on the same land, 
or an entry may be made thereof during the pendenc}' of 
such filings. The later filings or entry are made sub- 
ject to the claim of the first qualified settler who has filed 
his statement within the proper time. If he should subse- 
quently abandon the land, or f6rfeit his filing, the later 
filings' or entry would take effect, not from the date of 
such abandonment or forfeiture, but from the date of 
settlement or entry precisely as if no such prior filing had 
ever existed. If the first filing -'reserved" the land, this 
could not be the case, for "reserved" lands are not subject 
to pre-emption settlement. 

Reservation of Lands for Public Uses, 17 Op. Atty. 
Gen. 160. 

Bro'vii V. Corsoit, (Or.) 19 Pac. 72. 

Forbes v. Driscoll, (Dak.) 31 N. W. 633. 

Decision of Commissioner, dated Sept. i, 1868, 
Zabriskie's Land Laws, 85. 

Thomas v. Driauhillcr^ i L. D. 486. 

Field \. Black., 2 L. D. 581. 

State V. Alabama., 3 L. D. 315. 



37 

hidings v. Burns, S L. D. 224. 
U'a//er v. Davis, 9 L. D. 362. 
IlcniphiU V. Davies, 38 Cal. 578. 

And since the filing does not reserve or appropriate the 
kind, it is without effect as against the grant, unless it con- 
stitutes :i pre-emption claim or right, or attaches such 
claim to the land taking it out of the category of lands 
"free from pre-emption or other claims or rights." The 
pre-emption right "is, simply, the right which a person, who 
has complied with certain requirements of the law, has to 
purchase a portion of the puhlic lands at the minimum 
price to the exclusion of all others. It is wholly a crea- 
ture of the statute, and is exercised and exhausted as soon 
as the purchase and entr\' are made." 

Camp V. Smith, 2 Minn. 13S. (Gilf. ) 

McKean v. Crauford, 6 Kas. 1 18. 

Dillingham v. Fisher, 5 Wis. 480. 

A7,v V. Allen, 112 U. S. 129. (L. ed. 677.) 

Myers v. Croft, 13 Wall. 291. (L. ed. 563.) 

Aiken v. Ferry, 6 Saw. 87. 

y. B. Raymond, 2 L. D. S54. 

In each of the definitions of the term "pre-emption 
right" given in the above cases, the necessity of a com- 
pliance with the conditions prescribed b}- law as a pre- 
cedent to the creation of the right, is emphasized. The 
principal of these conditions, aside from the qualifications of 
the claimant, is a settlement ujjon the land. Says the 
Supreme court in Myers v. Croft, supra : 

"This was the right to pre-empt a quarter section of 
land dy settling upon and improving it, at the minimum 
price, no matter what its value might be when the time 
hmited for perfecting the pre-emption expired." 

What is a pre-emption claim ? 



38 

"Claim," says Mr. Webster, is "a demand of a right or 
supposed right; a caUing on another for something due 
or supposed to be due. A right to chiim or demand; a 
title to any delit, privilege or other thing in possession of 
another." 

In the phrase "pre-emjDtion claim" as used in the pre- 
emption laws, the word "claim" is used in the secondar\' 
sense of "a right to claim or demand." 

The second section of the act of March 3, 1S43, speaks 
of the settler "consummating.his claim," of the "cstablish- 
ment"and completion of the same. The fifth section requires 
the "claimants to make known their claims in writing," 
within a certain time, otherwise the "claim to be for- 
feited." Consummation, establishment, completion, and 
forfeiture are terms clearly inapplicable to "a demand of 
a right or supposed right." A "demand," or "a calling 
on another for something due or supposed to be due," is 
not the subject of a consummation, establishment or for- 
feiture. Such terms clearly refer to "a light to claim or 
demand." And a pre-emption claim ts a right secured 
by a compliance with the law, to demand the benefits given 
by the pre-emption law. 

U. S. V. Spaiildiiig^ ( Dak.) 13 N. \V. 360. 
Boxvtuan v. 7orr, 3 la. 573- 
W. P. R. R. Co. V. Spratt, Copp's L. L. 4i6.( ist ed.) 

It is in this sense that it is used in the phrase "free from 
pre-emption or other claims or rights," in the Northern 
Pacific act. This is rendered clear by the indemnity 
clause which describes lands not "free from pre-emption 
or other claims or rights," as "pre-empted." That land is 
not "pre-etuptcd" bv a mere assertion of a part}- thatheis 
entitled to pre-empt it, is too clear for argument. Whether 
that assertion be made by filing a declaratory statement or 
otherwise is immaterial. Unless it be sanctioned by law, 



39 

it can, at best, amount to nothing more than an attempt to 
pre-empt the land, and would not be sufficient to exclude 
the land from the grant. 

Brozcn v. Corson, (Or.) 19 Pac. 72. 

The statement itself is a mere caveat notifying the reg- 
ister not to allow any other party to enter the land as a 
pre-emption or homestead until the declarant is heard. It 
operates to attach the claim of an actual settler to the spe- 
cific land defining the land claimed, and notifying the 
world of the existence of such claim. 

A'. P. Ry. Co. V. Duinncycr, 113 U. S. 644 (L. ed. 
1127. 

Fitz fat rick v. Dubois, 2 Saw. 439. 

Brown v. Corson, (Or.) 19 Pac. 72. 

But it operates to attach the claim to the land, causilig it 
to be "pre-empted," onh' where there is a "pre-emption 
claim" to attach. 

The settlement and qualifications of a settler are essen- 
tial prerequisites to the creation of any claim or right un- 
der the pre-emption law ; and the existence of the pre- 
emption right is a condition precedent to its attachment to 
the land by the filing. The declaratory statement can at- 
tach nothing to the land, when nothing exists. The filing 
is absolutely without effect, save as the law gives it effect; 
and the pre-emption law gives it effect only when made 
h\ a dulv qualified settler. And Wetter, Scott, Glick and 
Wallace never having settled upon the land embraced in 
their filings, or inhabited or improved the same, or erected 
a tlwelling thereon, steps required by law as initiatory to 
the formation of the inchoate pre-emption claim or right, 
their filings did not attach a pre-emption claim or right 
thereto, so as to take the same out of the category of lands 
"free from pre-emption or other claims or rights." 



40 

These conclusions, drawn from the plahi letter of the 
act, are in strict accord with the obvious intention of con- 
gress in making the exceptions from the grant. The act 
docs not speak of filings excluding land from the grant, 
but of claims or rights. . It excludes lands that were "pre- 
empted." The intention was not to limit the grant, but 
to protect pre-emption and homestead settlers having valid 
and subsisting claims and rights at the time the grant be- 
came certain. 

Enislic V. Young, 24 Kas. 741. 

Ryan v. C. P. R. R. Co. 5 Saw. 264. 

K. P. Ry. Co. V. Diinincycr., 113 U. S. 644 (L. ed. 
1 127). 

Our conclusions, based upon the letter and spirit of the 
act, are supported by the great weight of authorit3-. The 
decisions of the courts are imiform in suppoi't of these. 
propositions. 

Broivn v- Corson., (Or.) 19 Pac. 67. 

N. P. R. R. Co. V. Meadoii's, 46 Fed. 255. 

Hosmcr v. Wallace, 97 U. S. 579 ( L. ed. 1 132 ). 

Ferguson v. McLaughlin., 96 U. S. 174 (L. ed. 625 ). 

Athcrton v. Foivlc.r., 96 U. S. 51S (L. ed. 734). 

A I ken V. Perry, 6 Saw. 87. 

A'cllv V. JJ'allacc, 14 Minn. 242. 

Pre-emptions, 4 Op. Atty. Gen. 493. 

'Patro \. French, (Kans.) 5 Pac. 426. 
Walker v. Stone, 48 Iowa, 95. 

And in the department it was uniformly held until 1888, 
that the existence of a filing on the records was not suffi- 
cient to except land from a railroad grant. That to cause 
a pre-emption claim or right to attach to the land, it was 
necessary that the filing should have been made b}- a duly 
qualified settler. 



41 

IV. P. R. R. Co. V. Spra/f, Copp's L. L. 416 ( 1st ed.) 
Circular of November 7, 1871, Copp's L. L. 405 

(isted.) 
Circular of August 15, 1S72, Copp's L. L. 3S9 ( ist ed. ) 
.\[cOuat V. W. i{- SL P. R. R. Co. 4 Copp's L. O. 
163. 

I'ii/cciit V. St. y. ct- D. C. R. Co. 4 Copp's L. O. 44 
Freeman v. 7\ & P. R. R. Co. 2 L. D. 550. 
Mc Comber v. C. £ O. R. R. Co. S Copp's L. O. 163. 

Walkcr''s Heirs v. California, Copp's L. L. 2S7 
(ist ed.) 

Weber V. W. P. R. R. Co. 6 Copp's L. O. 19. 
McMiirdie v. C. P. R. R. Co. S Copp's L. O. 36. 
Blodgett V. C. & O. R. R. Co. 6 Copp's L. C. 37. 
Emerson v. .S. P. R. R. Co. i L. D. 390. 
Mary Lewis, 3 L. D. 1S8. 
Ross V. Poole., 4 L. D. 116. 
kS. p. R. R. Co. v. San/n/crs, 6 L. D. 100. 

And we accordingly submit that the existence of the 
tilings alleged in the bill, were not sufficient of themselves 
to exclude the land from the grant. 

Second. But even if we concede that these filings 
might have caused the land to be " pre-empted " at one 
time, they had ceased to have any effect prior to Febru- 
ary 21, 1S72, when complainant fixed the general route of 
its road opposite this land. 

Section 15 of the act of September 4, 1841, requires the 
settler on offered land to make entry thereof within twelve 
months from the date of settlement ; and if he or she 
should " fail to make such affidavit, proof, and payment, 
within the twelve months aforesaid, the tract of land so 
settled and improved shall be subject to the entry of any 
other purchaser." On unoffered lands final proof or entry 



42 

was required to be made prior to their being offered for 
sale. 

Section 9 of the act of March 3, 1S43, provides: ••' And 
said act shall not be so construed as to preclude any per- 
son who may iia\e filed a notice of intention to claim any 
tract of land by pre-emption under said act, from tiie 
right allowed by law to others to pmxhasc the same by 
private entry after the expiration of the right of pre- 
emption." 

By the act ai5pro\-ed July 14, 1S70, 16 Stat. 379, congress 
provided that "all claimants of pre-emption rights shall here- 
after, when no shorter period of time is now prescribed 
by law, make tiie proper proof and jDayment foi- the lands 
claimed within eighteen months after tiie date prescribed 
for filing their declaratory notices shall have expired ; 
provided^ that where said date shall have elapsed before 
the passage of this act, said pre-emptois shall have one 
year after the passage heieof in which to make such 
proof and payment." 

By this act a jDcriod was prescribed within \yhich entry 
should be made of unoffered land, like that in controversy. 
The period for making such entr\- having elapsed as to 
the filings of Scott and Glick, before the passage of this 
act, the}' were liy its provisions rccpiired to make the entry 
.vithin one year from the date of its passage, or by July 
14, 1S71. As the time prescribed in the act had not 
elapsed since the filing of Wallace was made, he was en- 
titled to eighteen months from the date of his filing within 
which to make the entry, to-wit: until June 13, 1S71. 

By joint resolution entitled " A resolution for the relief 
of settlers on the public lands," approved March 3, 1S71, 
prior to the expiration of the time within which these 
parties were required to make their final proof by the act 
of July 14, 1S70, congress provided "that settlers on the 



43 

public lands of the United States who have been required ■ 
to make proof and payment for their lands under the act 
to extend the provisions of the pre-emption laws to the 
terriloiy of Colorado, and foi" other purposes, approved 
July 14, 1S70, and by instructions from the general land 
office under date July 30, 1870, shall have twelve months 
additional time given them under which to make such 
proof and payment." ( 16 Stat. 601 ). 

The instructions from J:he general land office, under 
date of July 30, 1870, are as follows : 

Public Notice No. 743. 

Department of thij Interior, 1 

General Land Office, I 

July 30, 1S70. \ 

The following is an act approved July 14, 1S70, to ex- 
tend the provisions of the pre-emj^tion laws to the terri- 
tory of Colorado, and for other purposes: (Part II., 
No-. 36.) 

This act leaves the provisions of the law as heretofore 
respecting "offered lands," viz.: tiling within thirty days 
and payment within twelve months after settlement. 

The settler on surveyed "unoffered land" must file his 
or her declaratory statement within three months from 
the date of his or her settlement on such land, and, within 
eighteen months from the expiration of said three months 
make the proper proof, and pay for such land. 

Where settlers had already filed before the passage of 
the act, they are required to make pi'oof and payment 
within one year from such passage; therefore, all filings 
made prior to that date will expire, by limitation of law, 
upon unoffered lands, on the 14th of July, 1S71. 

The settler on "unsurveyed land" must file his or her 
declaratory statement within three months from the date 
of the receipt at the district land office of the approved 
plat of the township embracing the tract upon which he 
or she has settled, and, within eighteen months from the 
expiration of said three months, make the proper proof, 
and pay for such tract. The proviso of the act of June 3, 
1862, requiring filing within six months from the survey 
in the field, and providing for filing with the surveyor 
general, is repealed. 



44 

Circular instructions to registers and receivers, giving, 
more specific details, will shortly be issued. In the mean- 
time, those ofhcers will be governed by this notice. 

Jos. S. Wilson, Commissioner. 

Copp's Land Laws, 391 (i ed.) 

This act of July 14, 1870, had prescribed a time within 
which "all claimants of pre-emption rights" should prove 
up. The exter.sion of this time granted by the resolution 
of March 3, 1S71, is in terms limited to "settlers." The 
object of Congress is plain. It grants the extension of 
time for making final proof to those who are actual set- 
tlers and complying, in good faith, with the pre-emption 
laws; but those who had abandoned their pre-emption 
claims; who had ceased to be settlers on the public domain, 
were not, by this act, granted any extension of time what- 
soever. As Scott, Glick and Wallace were not settlers on 
the public domain, they could not claim the benefits of 
the act of March 3, 1S71, and the time within which they 
were required to make their final proof by the act of July 
14, 1S70, had expired prior to February 21, 1S72. 

The act of July 14, 1S70, 16 Stat. 279, does not in terms 
provide any penalty for failure to make the proof and 
payment within the time prescribed. Certain, it is, how- 
ever, if any meanmg is to be given the time provision, it 
must be construed either as by implication absolutely pro- 
hibiting the making of proof and payment unless made 
within the prescribed time, or, construing that section by 
analogy with the provisions with reference to making final 
proof and payment for offered lands, contained in the act 
of September 4, 1S41, it must be construed as terminating 
the preference right of the settler to make proof and pay- 
ment within the time prescrilied by law; and the land is, 
after the expiration of that time, open to pre-emption by 
other parties, homestead entry, or other ilisposition. 



45 

Laiisdalc v. Daniels^ loo U. 8. i 13 ( L. ed. 5S9). 
Jolmson V. Tozusley^ 13 Wall 72 (L. ed. 489). 
Megcrlc v. As/ie, 33 Cal. S3, 91-2. 
DanircII v. J/f^'cr, 40 Cal. 170. 
Schicffcrly v. Tlr/A?, (Cal.) S Pac. S7S. 

The declaratory statement attaches the pre-emption 
claim or right to the land, and protects the pre-emptor in 
the exercise of his preference right of purchase. But this 
preference right expired at the time fixed in the act of 
July 14, 1870, within which the purchase should be made. 
It was fully enjoyed at the expiration of that time, 
whether the pre-emptor purchased the land or not. After 
that time, although the pre-emptor may enter the land if 
no other claim or right intervenes, the preference right of 
purchase — the pre-emptive right was gone. It had been 
fully enjoyed and the land again became free from pre- 
emption or other claims or rights. 

J. B. Raymond, 2 L. D. S54. 

Schiefferly v. Tapia, (Cal.) 8 Pac. 878. 

Sanford \. Sanford, 139 U. S. 644. 

And the declaratory statement, having served its pur- 
pose, hitcoYC^^^ functus o^cio^and of no effect whatsoever. 
It has never been the practice of the department to can- 
cel, formally, expired declaratory statements, or expunge 
them from the records. Indeed, the only record made 
u^Don the plats and records of such filings is a brief lead- 
pencil notation upon the tract books, giving the date of 
the filing and name of the filer. An examination will 
show thousands of such filings in any land ofiice, running 
back to the passage of the law, upon the books uncan- 
celed. In this very case, the filings of Glick, 
Scott and Wallace appear upon the recoixls uncan- 
celed, although the land has been patented. The uniform 



4fi 

ruling of the department has been that such fiUngs are 

functus officio^ and without effect. 

Mr. Commsssioner Buttcrfield, on April 8, 1S51, said: 

"The land in question was reserved for the Mobile & 
Chicago railroad inider act twentieth September, 1850, 
subject alone to existing rights. The failure of the party 
to prove up his claim in due time, forfeits what claim he 
might otherwise have had, and it would be a great stretch 
of power on the part of this office, to interfere with the 
disposition of the land, under the act of .Sept. 20, 1850, and 
give it to Mr. Thatcher on the twenty -eighth February, 
1 85 1, because he might pi^obably have secured it, as a 
pre-emptor, if he had filed the necessar\^ testiinonv prior 
to the twentieth Februarv, 1S51." Pre. Record, Vol. 26, 
376-77. 

November 26, 1S60, Attorney General Black said : 

"His failure for three years to make the necessary 
proof and payment, takes away whatever equity there 
might have been in his case. Had he complied with the 
law in matters of substance, the mistake (if it was one) in 
his declaratory statement would probably have been dis- 
covered and corrected. To approve this claim now, would 
be to make it good at the expense of overthrowing an in- 
tervening title, which we arc not authorized to do. The 
railroad company took a grant of it in 1857, during the 
lifetime of Lutz, and when the land, in consequence of his 
default, was subject to the entry of any other purchaser." 

Claim of Lutz's heirs, 9 Opinions Attorney General, 
515- 

In circular of Sept. S, 1873, Commissionei' Drummond 

says : 

"By the operation of law limiting the period within 
which proof and payment must be made in pre-emption 
cases, such claims are constantly expiring, the settler not 
appearing within such time to consummate his entry. 
These expired filings are classed with those actually aban- 
doned or relinquished." 

I Copp's L. O. p. 29. 
In circulai" of Nov. 7, 1879, ^'^^ department says : 



47 

"Where application is made by a railroad company to 
select lands on which pre-emption filings have heretofore 
been made and canceled, or where the same have expired 
by limitation of law, no other claim or entry appearing of 
record, you will admit the selections, in accordance with 
the rules governing in the premises herein communicated. 
No proofs by the companies concerning such claims will 
hereafter be required." 

6 Copp's L. O. 142. 

« 

Jan. 13, 1885, the secretary of the interior said : 

, "If a selection embraces land subject to pre-emption or 
homestead, the law requires any settler intending to claim 
the land to put his or her claim of record within a pre- 
scribed period of thirty days or three months from settle- 
ment, depending upon the condition of the tract, as 'of- 
fered' or 'unoffered' land. If no adverse claim be filed 
under the law, the selection is entitled to approval. * * 
Respecting lists 3 and 4, the reason given by the register 
and receiver is not sufficient to authorize their rejection. 
An 'expired pre-emption filing' is no bar to receipt of an 
a^Dplication for public lands, nor for suspension of an entry, 
and is never considered as a bar to issue of patent. Nor 
is it the practice to enter formal cancellation of such filings 
upon the books, nor take any action concerning them. 
They are simply treateel as abandoned claims." 

State of Alabama, 3 L. D. 317. 

In circular of June 4, 1885, it is said : 

"It is also held by the department that expired D. S. 
filings are to be regarded as abandoned claims, not requir- 
ing to be formally canceled on the records." 

3 L- D. 577. 

See also : 

CaldzueH v. AJ. K. & 7\ R. R. Co. 8 L. D. 570. 
A/lers V. A/. P. R. R. Co. 9 L. D. 452. 
N. P. R. R. Co. V. Stovenonr, 10 L. D. 64S. 
^V. P. R. R. Co. V. Moling, 11 L. D. 140. 
Kricklan v. St. P. d- 6-. C. /?./?. 13 L. D. 22. 

The decisions of the courts are to the same effect. 
Schieffcrly v. Tapia, (Cal.) 8 Pac. 878. 



48 

N'. P. R. R. Co. V. Meadozvs, 46 Fed. 254. 
Emslie v. You fig., 24 Kas. 741. 
Yo2tng V. Goss (Kas.) 32 Pac. 572. 

Accordingly, the existence of tliesc expired filings up- 
on the records of the land office Fehruary 3i, 1S73, did 
not take the lands out of the category of lands "free 
from pre-emptioy or other claims or rights." This con- 
struction is in harmon}- with the plain intention of con- 
gress in the Northern Pacific act. That intention was 
not to exclude lands from the grant upon forfeited and 
abandoned filings, but to protect vested and existing 
rights in others. 

Ryan V. C P. R. R. Co, 5 vSaw. 264. 

Enislic V. I'ouiio-., 34 Kas. 741. 

The lands in question, therefore, being at the time com- 
jDlainant fixed the general route of its road, viz : Febru- 
ary 2 1, 1S72, free from pre-emption or other claims or 
rights, they were not thereafter subject to sale, pre-emp- 
tion or entry except by complainant. 

III. 
What effect i.s to be (;i\-en to the alleged 

HOMESTEAD ENTRY OF WiLLIAM II. McLeAN MADE 

May 3, 1873 ? 

Notice of the fixing of the general route of complain- 
ant's road was not received at the district land office until 
Ma_v 6, three days aftei- tlie allowance of McLean's 
entry. This was immaterial. The statute became effec- 
tive immediately upon the fixing of the general route, 
February 21, 1S72, and from that lime forth prohibited 
the sale, pre-emption and entry of the land excejjt by 
complainant. The entry was not the less void as made 



49 

upon rcsei\LHl land, l)ecause made witlionl knowledge of 

the reservation. 

.v. P. R. R. Co. V. Ortoji, 32 Fed. 46S, 479. 
Bntlz V. N. P. R. R. Co. 1 19 U. S. 70. (L. ed. 336.) 
VanWyck v. Kj/evals, 106 U. S. 360. (L. ed. 203.) 
Waldon v. Kneva/s, 114 U. S. 373. (L. ed. 16S.) 
Denny v. Dodson., 32 Fed. 909. 

St. P. d' P. R. R. Co. V. N. P. R. R. Co., 139 
U. S. 17. 

Such entry was not voidable merely, but an absolute 
nullity, void ah initio. 

\'an Wyck v. Kncvals., 106 U. S. 360. (L. ed. 203.) 
Waldon V. Kncvals., 114 U. S. 373. (L. ed. 16S.) 
Doolan v. Carr, 125 U. S. 618. (L. ed. S47.) 
6". P. R. R. Co. v. Orton, 32 Fed. 468. 
Francocnr v. Nc'Li^hoiisc, 40 Fed. 620. 

And unless this attempted entry by McLean is cured 
by the act of congress, entitled "An act to confirm pre- 
emption and homestead entries of public lands within the 
limits of railroad grants, in cases where such entries have 
been made under the regulations of the land department," 
approved April 21, 1S76, 19 Stat. 35, it can have no effect 
whatsoever. 

The first section of this act, the only one that could 

have any application, provides : 

"That all pre-emption and homestead entries, or entries 
in compliance with any law of the United States, of the 
public lands, made in good faith, by actual settlers, uiaon 
tracts of land of not more than one hundred and sixty 
acres each, within the limits of any land grant, prior to 
the time when notice of the withdrawal of the lands em- 
braced in such grant was received at the local land office 
of the district in which such lands are situated, or after 
their restoration to market by order of the general land 
office, and where the pre-emption and homestead laws 
have been complied with, and proper proofs thereof have 



50 

been made liy the parties holding such tracts or parcels, 
they shall be confirmed, and patents for the same shall 
issue to the parties entitled thereto." 

The first thing to he noticed in this act is that it is 
confined to entries made of the " public lands." The 
words "public lands" are habitually used in congressional 
legislation to describe such as are subject to sale or other 
disposal under the general laws. 

Neivhall v. Sanger^ 92 U. S. 761 (L. ed. 769). 

After February 31, 1872, and at the time McLean made 
his entry, the land in question was not public land. It had 
been reserved from sale, 23re-emption or entry by the act 
of congress. Consequently the act did not apply to an 
entry thereon. 

Furthermore, McLean's entrj' was not, in any view of 
the case, authorized by said act. The act, at most, pro- 
tects only entries "made in good faith b^' actual settlers 
* * * prior to the time when notice of the withdrawal 
was received." It appears from the allegations of the bill 
that McLean was not an actual settler on this tract at any 
time. In J/cCl/n-c v. iV. P. R. /?. Co. 9 L. D. 155, it 
was held that only entries " made in good faith by actual 
settlers" are confirmed by said act. See also Offutt \. 
N. P. R. R. Co. Il-.id., 407, Oliicy v. H. iC- D. Ry. Co. 
10 L. D. 136, and Knapp\. N. P. R. R. Co. 11 L. 
D.S5. 

The act itself shows the class of lands it was intended 
to reach. The entry must have been made upon the pub- 
lic land " prior to the time when notice of the withdrawal 
of the lands embraced in such grant was recei\e(l at the 
local land oftice of the district in which such lands are sit- 
uated." It is evident from this provision that the act ap- 
plied to a class of lands reserved by an order, notice of 
which was required to be sent to the local land office. It 



51 

was the custmn of the ulterior tlepartnient to withdraw 
lands for the benefit of railroad grants from sale, entry, 
pre-emption, or other disposition, by executive order. 
Such order it was the duty of tine department to send to 
the registers and Receivers of the local land offices, and 
this was and is designated in the phraseology of the land 
office as gi\-ing "notice of the withdrawal;" and it is to 
such withdrawal that the act has application. It forbids 
the construction of such executive order as taking effect 
from the day it was issued as against parties having a 
homestead or pre-emption entry upon the land, initiated 
after such order was sent to the local office, but before it 
was received, and before the parties could have had notice 
thereof. 

The term " withdrawal," as employed in the usage of 
the land office, means to withhold from sale lands of the 
United States which would otherwise remain salable. It 
is exclusively used as meaning a reservation created by 
executive ordei-. The sixth section of the charter of the 
company did not make a withdrawal within the meaning 
of that term, but created a legislative reservation of the 
lands. 

JV. p. R. R. Co. v. J///AV-, 7 L. D. I 20. 

This meaning of the term was well established when 
congress passed the act referred to, and it must be pre- 
sumed, in the construction of that act, that thev used that 
term in its ordinar}' signification. That congress did use 
this term in this sense, is made more clear l~iy the phrase 
"or after their restoration to market bv order of the gen- 
eral land office." The land office has no authority to re- 
store lands to market withdrawn b}- act of congress. The 
department had jui-isdiction to revoke its own orders of 
withdrawal, and restore lands withdrawn by executive 
order to market, but its jurisdiction extended no farther ; 



52 

and it is obvious from tlie context, and the juxtaposition 
of the phrases "notice of the withdrawal of the lands em- 
braced in such grant w-as received at the local land office," 
and " or after their restoration to maiket by order of the 
general laird office," that the phrases applied to the same 
class of lands, that the restoration referred to is a restora- 
tion of such a withdrawal as is referred to in the first 
phrase. This construction of the act, making it refer to 
executive withdrawals only, makes plain and clear the use 
of the language "public lands." Lands under this act re- 
mained public until notice of the withdrawal was received 
at the local land ofiiccs. It is not to be presumed that 
congress intended by the term "public lands" to describe 
lands which, by its own act, it had declared were not pub- 
lic, such as the lands reserved under the sixth section of 
the charter. The act was a prohibition upon the execu- 
tive from giving to its orders of withdrawal effect, as 
against these settlers, until it should first have sent notice 
thereof to the local land offices. It was also a legislative 
construction of the effect to be given such executive orders 
as had been made prior thereto. 

It should be further noted that the act provides that the 
entries shall be "confirmed." The use of the term "con- 
firmed" is significent. It means to complete or establish 
that wiiich was imperfect or uncertain. A confirmation 
is a species of common law conveyance. It is defined as 
a deed whereby a conditional or voidable estate is 
made absolute and inviolable by the confirmant, so far 
as he is able, or whereby a particular estate is increased. 

Smith's Real Property, referring to Coke Lit., 295 B. 
and 2 Bl. Comm. 325. 

An entry made upon lands reserved by act of congress 
does not create an imperfect or voidable estate, but creates 
no estate whatsoever. It is not voidable, but void ab 
initio. 



53 

J?. P. R. R. Co. V. Orion, 32 Fed. 46S, 479. 

Denny v. Dodson, 33 Fed. 901. 
Van Wyck v. Knevals, 106 U. S. 360. (L. ed. 203.) 
Smelting Co. V. Kcmf, 104 U- S. 636. (L. ed. 877.) 
Steele V. Smelting Co., 106 U. S. 447. (L. ed. 32S.) 
Doolan V. Can; 125 U. S. 618. (L. ed. 847.) 

And it is not to be presumed that congress, in using the 
term "confirmed" intended thereby to create an estate out 
of an entry which its own acts declared absolutely void. 
\nd although a homestead or pre-emption entry made 
upon lands reserved by order of the President was also 
forbidden by act of congress, the term "confirmed" is 
correctly used for the reason that the act was a legislative 
construction of prior orders of withdrawal. It is a legis- 
lative declaration that such orders of withdrawal are not 
effective until notice thereof is given to the local land 
office, and that entries made prior to such time were 
rightfully made, and are, by the act, confirmed. 

"xhis section of the act has been before the courts for 
construction several times, and it has uniformly received a 
construction in accordance with these views. 
Taborcck v. R. R. Co., 13 Fed. 103. 
B. iC' jM. R. R. Co. V. La-wson, 12 N. W. 231, s. c. 58 

Iowa, 145. 
A. T. &. S. F. R. R. Co. V. Bobb, 24 Kan. 673. 
Emslic V. Young, 24 Kan. 743. 

And this act must necessarily have received a construc- 
tion, although the opinion was silent thereon, in 

Buttz V. N. P. R. R. Co., 1 19 U. S. 70. (L. ed.354.) 
Van Wyck v. Knevah, 106 U. S. 360. (L. ed. 201.) 
Dc?iny V. Dodson, 32 Fed. 899. 
Waldon V. Knevah, 114 U. S. 373. (L. ed. 167.) 



54 

To place a construction upon this act giving it the 
effect of permitting entries upon lands included within the 
reservation created by the sixth section of the Northern 
Pacific act, is to make it repeal that section. The act of 
April 31, 1S76, is an affirmative act, and contains no 
words of repeal. It will not be construed to repeal the 
sixth section of the charter, if, by a possible construction, 
the two may be made to stand together. Repeals by 
implication are not favored. 

Woodv. U. S., 16 Pet. 342. 
McCool \. Sinit/i., I Black, 459. (L. ed. 232.) 
U. S. V. Tyne?i, 11 Wall. 88. (L. ed. 154.) 
Red Rock V. Hc/ny, 106 U. S. 603. (L. ed. 253.) 

And in carrying out this rule the courts will not con- 
strue a general statute as repealing a prior special statute. 
/;/ re J\Ia)ijifactfirer''s National Bank^ 5 Biss. 502. 
Hu7ne V. Gossett^ 43 111. 397. 
TJie People v. i\Iinor, 46 111. 384. 

Third Natio7ta1 Bank of St. Louis v. Harrison., 3 
McC. 164. 

The charter of complainant is a special statute; the act 
of April 3 1, 1S76, is general m its terms, and, under the 
decisions above cited, cannot be construed as repealing the 
sixth section of the special statute. 

A repeal of the sixth section would be an act of forfeit- 
ure. Forfeiture acts are not favored, and statutes declar- 
ing them should be liberally construed to avoid them. 
Baxter v. Cross, 3 L. D. 70- 

6"^. Louis, etc. R. R. Co. v. A/cGce, 115 U. S. 469. 
(L. ed. 44S.) 

It is the (lut\- of the court to construe the act of April 
21, 1876, according to the intention of congress as ex- 
pressed therein. But if that act is susceptible of two con- 



55 

structioiis, it will not be presumed that congress intended 
it to have a meaning which would give it the effect we 
have suggested, to-wit, to make it an act of forfeiture; 
and repeal by implication the sixth section of the North- 
ern Pacific charter. 

Ao-ain, such a construction would render that section of 
the act unconstitutional, and it would be void astakingthe 
property of complainant without due process of law. In 
the absence of a breach of the conditions of the grant, 
and after the acceptance of the grant and fixing of the 
line of general route by the company, congress had no 
power to declare such forfeiture. 

U. P. Ry. Co. V. U. S., 99 U. S. 700. (L. ed. 501.) 

U. S. V. Curtner., 38 Fed. i. 

Denny v. Dodson., 32 Fed. 906. 

The company had until July 4, 1S79, to complete the 
road, and Congress could take no proceedings to declare 
a forfeiture of this grant until one year after the breach of 
the conditions, viz., until July 4, iSSo, even if a forfeiture 
could have been declared at all. 

Gen'l. Land Office Rep. 1879, p- 119- 

N. P. R. R. Co., 3 L. D. S59. 

Section 9 of Charter. 

.S". P. R. R. Co. v. Orton, 32 Fed. 468, 479. 
The entry of McLean was, therefore, without effect. 



IV. 



What effect is to be given to the cancellation 

OF THIS entry, made SEPTEMBER II, 1S79? 

Section 2 of the act approved May 20, 1862, 12 Stat. 
392, provides that no certificate shall be given, or patent 
issued, for land entered under the homestead law, "until 



56 

the expiration of five years from the date of such entry; 
and if, at the expiration of such time, or at any time two 
years thereafter^ the person making such entry ; or, if he 
be dead, his widow; or, in case of her death, his heirs or 
devisee; or in case of a widow making such entry, her 
heirs or devisee, in case of her death ; shall prove" the 
residence and cultivation of the land for five years suc- 
ceeding the entry, and make the necessary affidavits, then 
he, she, or they, if a citizen of the United States, shall be 
entitled to a patent. This provision is carried into the re- 
vised statutes, section 2291. 

These statutes require the making of final proof at the 
date of the expiration of five vears, "or at anv time within 
two years thereafter." The court cannot dispense with 
this requirement. 

Megerle v. Ashc^ 33 Cal. 83, 91-2. 

Da?)ire/I v. ^/eyer^ ^.o Cal. 170. 

Sc/iicjfcr/y v. Tapia, (Cal.) 8 Pac. 87S. 

Antl seven years having elapsed since the date of 
McLean's entry without his attempting to make final 
proof, his entry was properly canceled by the com- 
missioner. 

Schoolficld y. Hoitlc^ (Col.) 22 Pac. 7S1. 

17 Op. Atty. Gen. 161. 

McLean, by his failure to respond to the notice or 
appeal from the commissioner's decision, acquiesced there- 
in, and waived all claim or right to the land. 

Burlmg \. ThoDifikins^ (Cal.) 19 Pac. 430. 
I3u)-nham v. Starker., (Kas.) 21 Pac. 629. 
Bensto?i v. N. P. R. R. Co., 7 Copp's L. O. 34. 
JVe^>er v. IV. P. R. R. Co., 6 Copp's L. O. 19. 
Ergler v. Walker, 10 Copp's L. O. 34. 
Broivn v. Jefferson, i L. D. 467. 



57 

A'. P. R. R. Co. V. Hess, 2 L. D. 474. 

.V. P. R. R. Co. V. Schocbc, 3 L. D. 1S3. 

Page V. Fletcher., 3 L. D. 397. 

Johnson V. J/. A', a' T. Ry. Co., 8 L. D. 5SS. 

Neilson v. ^V. P. R. R. Co., 9 L. D. 402. 

The land being free from pre-emption claims or 
rights after the cancellation of this entry, whatever its 
condition was prior to tliat time, it immediately became 
subject to the prohibition from sale, pre-emption or entry, 
except by the railroad company, contained in the sixth 
section of the Northern Pacific act. That section pro- 
hibits the entry of "the lands hereby granted" "after the 
general route shall be fixed." 

And as the land in controversy fell within the description 
of the "land hereby granted," immediately upon becoming 
public land, free from pre-emption or other claims or 
rights, by the cancellation of the entry, even if it were not 
so before, the reservation created by the sixth section im- 
mediatel)' attached thereto. 

Said the supreme court in Bitttz v. iV. P. R. R. Co., 

119 U. S. 72. (L. ed. 336.) 

" The object of the law in this particular is plain : It is 
to preserve the land for the company to which in aid of 
the construction of the road it is granted." 

In the execution of this purpose there is no reason for 
giving the section a meaning other than what we have 
suggested. The policy of congress in making these land 
grants is uniformly to lequire the company to take the 
odd numbered sections nearest the line of the road. 

Woodx.B. a- J/. R.R. Co., 104 U. S. 329.(L. ed.773.) 

In pursuance of this policy, cuid its policy to reserve 
such lands for the benefit of the Northern Pacific railroad 
Company prior to definitely locating the line of the road, 



58 

it must be held that it was the intention of congress to re- 
serve all the odd numbered sections nearest to the line of 
the road where such reservation could be made without 
niterfering with prior rights or entries, and that the reser- 
vation attaches to the land upon its becoming publicatanv 
time after the general route was fixed, and forbade the in- 
itiation of a new entr\- thereon, although such land was 
covered b}- an existing entry at the time the general route 
was fixed, rather than that such tract of land w-as foi^ever 
excluded from tlie reser\'ation and subject to be entcreti hv 
any stranger upon the cancellation of the prior entry, 
while the compan\- would be compelled to secure indem- 
nit}- lands at a greater distance from the road than the 
tract lost. Such appears to have been the construction 
placed upon this act b}- the supreme court in Buttz v. N. 
P. R. R. Co., 1 19 U. S. 72, ( L. ed. 336). 

We submit that whatever may have been its prior con- 
dition, immediately upon the land in controversy becoming 
public l)y the cancellation of McLean's entrv,the reserva- 
tion in favor of the company took effect thereon. 

No further filing or entr}^ w^as sought to be made on this 
land prior to July 6, 1SS2, when complainant definitelv 
fixed the line of its road and filed a plat thereof in the 
ofTice of the commissioner of the general land office; and 
the land was on that da\- free from pre-emption or other 
claims or rights, unless a claim or right vested in AIcLean 
by virtue of the act of June 15, iSSo, 21 Stat. 237. The 
second section of that act provides as follows: 

"That persons who have heretofore under anv of the 
homestead laws entered lands properly subject to such 
entry, or persons to whom the right of those having so 
entered for homesteads, may have been attempted to be 
transferred by ho)ia Jidc instrument in writing, may entitle 
themselves to said lands by paying the government price 
therefor, and in no case less than one dollar and twenty- 
five cents per acre, and the amount heretofore paid the 



59 

government upon said lands shall betaken as part payment 
of said price: provided, this shall in no wise interfere with 
rights or claims of others who may have subsequently en- 
tered such lands under the homestead laws." 

As the entry of McLean was made subsecjuent to the 
location of the general route of the road, it was not made 
upon lands subject to such entry, and, therefore, does not 
come within the provisions of this act. 

Instructions to R. cS: R., 7 Copp's L. O. 142. 

Again, the land being, at the date of thepassageof this 
act, reserved from sale, pre-emption, or entry, except b\' 
the railroad company, it was not subject to the operation 
thereof. 

U. S. V. Ciirtncr, 38 Fed. S. 

St. p. d- p. R. R. Co. V. N. P. R. R. Co., 139 U. S.iS. 

Nor does the act of June 15, 18S0, vest in the entr\-man, 
whose entry has theretofore been canceled, such a right 
or interest in the land as would prevent it passing untlcr 
the grant to the companj-, or prevent the acquisition of 
title thereto, except under the homestead laws; nor does it 
vest in the entrvman a right or interest in the land suffi- 
cient to preclude congress from disposing of it at any time 
before application to purchase is made, in such manner as 
it may deem fit. The act vests in the entryman a mere 
privilege to secure title by paying the government piice 
for the land, which he ma)- accept or not, and until the 
privilege is accepted by him and payment made, he has no 
right or interest in the land. 

Frisbic v. Whitney, 9 Wall. 1S7. (L. ed. 671.) 
Pint chins V. Lozv, 15 Wall. 77. (L. ed. 84.) 

The proviso to the act does not change this construction. 

While that proviso is that the act shall in no wise mter- 

fere with the rights or claims of others who may have 



60 

subsequently entered such lands under the homestead 
laws, the term "homestead laws" is used in a generic 
sense, intending thereb}' to illustrate the intent of con- 
gress to protect all vested rights that might intervene 
prior to the application to purchase certain lands under 
the provisions of the act in cjuestion. This construction 
was early placed upon this act by the. Interior Depart- 
ment, and has been constantly maintained until the jDres- 
ent time. 

See instructions to R. & R., 7 C. L. O. 142. 

William White, i L. D. 55. 

Samuel M. Mitchell, i L. D. 97. 

In George W. Bishop, i L. D. 69, Secretary Teller 
says : 

"It is urged by the appellant's attorney that 'only ad- 
verse claims arising under the homestead law are a bar' 
to the operation of the provisions of said section. This 
position appears to be taken and could only be maintained 
under the doctrine of the well-known maxim '•cxfressio 
unius est exclitsio alterms^ and if that maxim applies to 
this proviso it is conclusive of the case. 

" But although the rights or claims of those who have 
subsequently made 'homestead' entries are the only 
rights expressly protected from the operation of the sec- 
tion cited, it cannot be presumed that congress intended 
to divest any bona fide settler of \estcd rights. 

"A statute, it has been said, is to be so construed, if pos- 
sible, as to give sense and meaning to every part; and the 
maxim was never more applicalile than when applied to 
the interpretation of a statute, that '■expressio unius cxclu- 
sio alterius.'' The sages of the law, according to Plow- 
den, have ever been guided in the construction of statutes 
by the intention of the legislature, which they have al- 
ways taken according to the necessity of the matter, and 
according to that which is consonant to reason and sound 
discixHion. 

"Thus it sometimes happens that in a statute, the 
language of which may fairlj- comprehend many differ- 
ent cases, some only are expressly mentioned by way of 
example merely, and not as excluding others of a similar 
nature. (Broom's Legal Maxims, 7th ed., 664.) 



61 

"I am therefore of the opinion that congress used the ex- 
pression 'homestead laws' in a generic sense, intending 
therehy to illustrate its intent to protect all vested rights 
that might intervene prior to the application to purchase 
certain lands under the provisions of the act in question. 
Such construction is within the reason and spirit of the 
statute if not within its letter." 

And see Pomcroy v. Wright, 2 L. D. 164. 

Charles C. Martin, 3 L. D. 373. 

Gilbert V. Spearing, 4 L. D. 463. 

Patrick Roderick, 4 L. D. 493. 

N. P. R. P. Co. V. Elder, 6 L. D. 409. 

Nut tic V. Leach, 7 L. D. 325. 

Pitckctt V. Kaiijmaii et al., 10 L. D. 412. 

In the last case Assistant .Secretary Chandler said: 
"As early as July, 1SS2, Secretary Teller held (case of 
Bishop, I L. D. 69,) that the expression 'homestead laws' 
as used in said proviso, was a generic term and compre- 
hends in its meaning several laws for the acquisition of 
title to public lands. In that case it was specifically made 
to include the timber-culture and pre-emption laws, and 
the Secretary held therein that Congress intended by its 
use 'to protect all vested rights that might intervene prior 
to the application to purchase.' The ruling in the Bishop 
case has since been steadily followed, and is now the well 
established law of this department." 

In the case of N. P. P. P. Co. v. Elder, 6 L. D. 409 Mr. 
Justice Lamar held that a title vested by filing the map of 
definite location in the Northern Pacific Railroad Com- 
pany prior to the passage of this act, was not within its 
terms, and that the proviso to the act excluded such 
rio-ht as well as a pre-emption or homestead claim or entry. 
The department has further held that the initiation of a 
contest against the prior homestead entry and its exist- 
ence, whether that contest be initiated under the home- 
stead or pre-emption laws, vests in the contestant under 
the act of May 14, 1S80, such a right to the land as will 
take it out of the provisions of the act of June 15, iSSo. 



62 

See Friesc v. Hobson^ 4 L, D. 580. 
Greer v. Brozv/i, 5 L. D. 339. 
Lyons v. O' Shaj(g lines sy^ 5 L. D. 606. 
Roberts v. Mahl, 6 L. D. 446. 
Clement v. Hencv^ 6 L. D. 643. 
Craig V. Hoz.-ard, 7 L. D. 339. 
Arnold v. Hildreth^ 7 L. D. 500. 
6; ^\ V. .SVo//' 7?^r, S L. D. 57S. 
Piickctt V. Kai/finan^ 10 L. D. 413. 

The history of the act itself sustains this construction. 
Prior to the incoming- administration in March, 1879, set- 
tlers upon the pulic lands, those who had made entry as 
well as mere squaters, timber speculators and others, had 
been permitted bv the policy of the g-overnment to cut, 
upon the public lands, such timber as they desired, and 
no effort was made to protect the public domain from 
such waste. Under this passive attitude of the govern- 
ment, such trespasses had acquired gigantic proportions. 
Millions of feet were cut annually. Such timber, so cut, 
passed from the hands of the lumber men into those of in- 
nocent purchasers. With the new administration, however, 
commencing in March, 1S79, this was changed. The 
government adopted strict measures to protect its lands 
and the timber thereon. Suits were initiated everywhere 
against parties who had cut timber in the past; as well 
against innocent purchasers, to recover the value of the 
timber in their hands, as against the timber speculators; 
as well against the homestead and pre-emption settler, 
who had cut and disposed of timbei' from the land which 
he sought to enter, as against timber thieves. In view of 
the preceding quiet attitude of the government in this 
matter, which had been construed as a tacit permission to 
commit these depredations, and for the purpose of jirotect- 
in"' those into whose hands such lumber had innocenth' 



63 

come, and to protect entry men who had cut and sold the 
timber from the land thes^ were seeking to enter in good 
faith, the act of June 15, 1S80, was passed. The first 
section of that act provided in substance that when anj^ 
lands of the United States shall have been entered and the 
government price paid therefor in full, no criminal pro- 
ceeding by or in the name of the United States should 
thereafter be maintained for any trespasses upon or on 
account of any material taken from said lands; and no 
civil suit or proceeding should be further maintained on 
account of any trespasses upon or material taken from the 
lands of the United States in the ordinary clearing of land 
in working a mining claim or for agricultural or domestic 
purposes, or for maintaining improvements upon the land 
of any bona fide settler, or for timber or material taken or 
used by any person without knowledge of the trespass, &c. 
Provided, that the provisions of this section should apply 
only to trespasses done and committed prior to March i,- 
1S79, and provided further that defendants in such suits 
or proceedings should exhibit to the proper courts or offi- 
cer the evidence of such entry and payment. It was evi- 
dent, however, that without some change in the home- 
stead law, this act would afford no relief to perhaps the 
most deserving class of the trespassers named, to-wit: 
those who had made homestead entry of the land and had 
not, and could not under the homestead act, yet prove up 
and enter the same. Under the homestead act there was 
no provision for entering the land and paying the govern- 
ment price therefor. The title under that act was to be 
perfected only at the expiration of five years cultivation of 
the land, and to enable such homestead entrymen to ob- 
tain the benefits of this act, the second section introduced 
a new provision into the law, enabling such homestead 
e'ntrymen to enter the land by paying therefor. It 



64 

would be strange indeed if congress, in passing an act 
which was intended only as an act of amnesty to those 
who were, in the eyes of the law, criminals, should have 
vested in them a \aluahle right and interest in the land 
itself, prior to making such purchase; and in lieu of an act 
of amnesty, had placed a reward upon the perpetration of 
such criminal acts, and had given to such trespassers avd 
others claiming the benefits of this act, a right which, so 
far as congress could do it, would be a divestiture of prior 
vested rights. We are satisfied such was not the intent 
of congress, and that the construction placed upon this act 
by the interior department is correct. The act vested in 
those who had, prior thereto, made a homestead entry of 
lands subject to such entry, a mere privilege to purchase 
the same. Such privilege did not constitute a right or 
claim to the land itself, and its existence, therefore, would 
not take the land out of a grant like that to the Northern 
• Pacific Railroad Company. Notwithstanding the exist- 
ence of this privilege, the land remained free and public. 
When such privilege was used and an entry of the land 
made, the entry took effect, not as a consummation of the 
original homestead entrv, but as the initiation of a new 
right to the land. The homestead entryman, under this 
act, was simply vested with the right to make a cash enti'y 
of the land if he so chose. Such right did not operate to 
reserve or exclude the land from other disposition more 
than the commoji right of the public to purchase offered 
land at private sale operates to except such lands from 
other disposition. The privilege of the homestead entry- 
man was analogous to that of pre-emption entryman 
whose filing had expired. He could make cash entry of 
the land, provided it was subject to such disposition at the 
time he made his application to make such entry, but he 
had no right or interest in the land as against any one un- 
til such entry was made. 



65 

In Nathaniel Banks, 8 L. D. 532, Secretary Noble says : 

" It seems to be claimed by counsel in the motion for 
review, that a purchase under the act of iSSo is not a new 
or original entry, but a reinstatement and consummation 
of the homestead entry, operating by relation from the 
date of such entry. The act, however, by protecting 'all 
vested rights that might intervene prior to application to 
purchase' (George S. Bishop, i L. D. 69), expressly de- 
prives the purchase of any operation by relation as to such 
rights, and there is nothing in the language or reason of 
the law to sustain the position contended foi or to indicate 
that anything more was intended than the conferring up- 
on a particular class of persons the right of private cash 
entr}' of certain lands., operative from the date of such 
entry." 

And see John C. Henly, 9 L. D. 178. 

An examination of the cases of JV. P. R. R. Co. v. 
B/trf, 3 L. D. 490 ; Holmes v. JV. P. R. R. Co. 5 L. D. 
336; N. P. R. R. Co. v. McLean, 5 L. D. 530, and iV^. P. 
R. R. Co. v. Elder., 6 L. D. 409, wherein the department 
held that a right to purchase lands under this act was suf- 
ticient to except land from the grant to the companv, 
shows such decision is based solely upon the proposition 
that such right of purchase was so attached to the land as 
to take it from the category of lands free from pre-emp- 
tion or other claims or rights. The decision in the Banks 
case, sufra., reverses this position. If any right or claim 
existed under the act of June 15, 18S0, prior to the appli- 
cation to purchase the land and payment of the cash there- 
for, such application and payment would relate back to 
the inception of the right, and to the date of the original 
homestead entry ; and the l>iding in the Banks case is in 
direct conflict with and supersedes the decisions in the other 
cases referred to. 

It follows, therefore, that the land in cpiestion was pub- 
lic land, to which the United States had full title, not re- 
served, sold, granted or otherwise appropriated, and free 
from pre-emption or other claims or rights July 6, 1882. 



66 



V. 

Complainant acquired titi-k to this land by 
definitely fixing jhe line of its road opposite 
thereto, and within forty miles thereof, and 
filing a plat of said line in the office of the 
commissioner of the general land office july 6, 

1S82. 

The grant to complainant by a(;t of July 2, 1S64, is a 
grant in p7'aesetit ; that is, it passes a present title to cer- 
tain odd numbered sections. What sections are granted 
cannot be ascertained until the line of the road is definitely 
fixed and a plat thereof filed in the office of the commis- 
sioner of the general land office. Previous to that time 
the grant is a float, but immediately upon the occurrence 
of that event, the title to the odd numbered sections of 
non-mineral public land, to which the United States has, 
at that time, full title, not reserved, sold, granted, or other- 
wise appropriated, and free from pre-emption or other 
claims or rights, vests in the grantee as of the date of the 
grant. 

St. P. <& P. R. R. Co. V. .V. P. R. R. Co. 1 39 U. S. 5. 

JV. P. R. R. Co. V, Bardcii, 46 Fed. 606. 

Denny v. Dodson., 32 Fed. 903. 

And as the prC-emption filings of Wetter, Scott, Glick 
and Wallace, and the entry o^ McLean had ceased to have 
any effect, if any they ever had, prior to July 6, 1S82, 
when complainant definitely fixed the line of its road op- 
posite the land in controversy, and filed a plat thereof in 
the office of the commissioner of the general land office, 
and the land was otherwise public land, free from pre- 
emption or other claims or rights, and was within the 



67 

limits of the grant, the title vested in the grantee, subject 
only to forfeiture for breach of conditions subsequent ; a 
contingency removed b}' complainant's compliance with 
these conditions as allesjed. 



VI. 
What is the effect of the allowance of the 

APPLICATION OF MaRIA McLeAN TO ENTER THIS LAND 
UNDER THE ACT OF JUNE I5, I SSo (MADE MaRCH I5, 
18S3), AND OF THE ISSUANCE TO HER OF A PATENT 

THEREFOR, June 17, 1SS7 ? 

As, prior to the date of this application, the title to this 
land had vested in the complainant, the department had 
no jurisdiction to grant the application. 

Moore V. Robbins, 96 U. S. 530 (L. ed. S50). 

U. S. V. ScJnirz^ 102 U. S. 37S (L. ed. 173). 

Steele v. Smelting Co. 106 U. S. 447 (L. ed. 228). 

Bicknellx. Comstock, 113 U. S. 149 (L. ed. 962). 

And the patent issued in 1887, being for land the title to 
which was not in the United States, was a nullity. 

Vaji Wyck V. Knevals, 106 U. S. 363 (L. ed. 204). 
Waldon V. Knevals, 114 U. S. 373 (L. ed. 168). 
Wright V. Rosebcrry, 121 U. S. 520 (L.ed. 1048) 
Iron Silver J/. Co. v. Campbell, 135 U. S. 286 (L. 

ed 157). 
Francoeur v. Neivhouse, 40 Fed. 623. 

And the other defendants, claiming title by mesne con- 
veyances from the patentee, take no better title than the 
patent conveys. 

S. P. R. R. Co. V. Dull, 22 Fed. 498. 



68 



Second. 

Conceding that complainant has the title to the 
land in controversy, and that the patent issued to Mrs. 
McLean, and the titles claimed through mesne convey- 
ances thereunder, are void, and a cloud upon complain- 
ant's title, yet it is claimed the bill does not state facts 
sufficient to show that complainant has a right to appeal 
to the equity jurisdiction of the court, for, it is urged, it 
does not contain an allegation that complainant is in pos- 
session of the premises. 

To this contention there are' two answers: First, the 
allegations of the bill do show that complainant is in pos- 
session of everv part of the premises except lots i to 6 in- 
clusive, in block 33; and lots 23 and 24 in block 30, of the 
platted land. Second, possession is not necessary for the 
maintenance of this action under the circumstances related 
in the bill. These answers we will consider in their order. 



I. 

The bill alleges: "Antl your orator further shows: that 
the said defendant, George S. Howell, is now in possession 
of, and claims the title to, lots i to 6, inclusive, in block 33, 
as shown on the said plat of said McLean Park Addition ; 
and that said defendant, Frank H. Pings, is in possession 
of, and claims title to, lots 23 and 24, in block 30, as 
shown on said plat of McLean Park Addition. 

"But your orator further shows that the remainder of 
said west half of the northwest quarter, southeast quarter 
of the northwest quarter, and the southwest quarter of the 
northeast quarter, is vacant, unimproved land, and that 
your orator is seized thereof in fee simple." 
Printed Record, p. 10. 



69 

The allegation that the complainant is seized in fee sim- 
ple is a sufficient allegation of possession to maintain an 
action of this nature. 

Gage V. Kaufman, 133 U. S. 471 (L. ed. 726.) 

And unless this allegation is so inconsistent with the al- 
legation that the land is "vacant, unimproved land" as 
to justify the court in disregarding it, it is sutficient. 
There is no inconsistency in the allegations. Taken 
together, the allegations amount to an allegation that 
the complainant has the constructive possession accom- 
panying the legal title to vacant, unimproved land; an 
allegation that there is no adverse possession or holding 
which could be assailed in ejectment. Such constructive 
possession is sufficient to support an action to remove a cloud 
fromthetitle. Thetruetest by which the right of complain- 
ant to maintain this action must be determined, is not 
whether it or defendants is in possession of the premises, 
but whether it has a plain, speedy and adequate remedy at 
law. Possession is material only as a factor in determin- 
ing the sufficiency of -the remedy on the law side of the 
court. If a defendant is in possession of land, and plain- 
tiff possesses the legal title, and can obtain full, complete 
and speedy justice by ejectment, he cannot resort to 
e(iuity, but if he is so circumstanced that ejectment will 
not give him such full, complete, adequate and speedy re- 
lief, or if there be grounds for equitable jurisdiction in the 
bill, independent of the question of possession, then his 
rioht to resort to equity should not be questioned, and 
whether plaintiff or defendant be in possession is imma- 
terial. The source and fountain head of equitable jurispru- 
dence, the very cause of its existence, was the inadequacy of 
the law courts to give full and complete relief. That moving 
spirit of equity is as operative to-day as it was in past cen- 
turies. When the founders of this government provided 



70 

that the judicial power shall extend to all cases, in law or 
equity arising under the constitution, laws of the United 
States, etc., they adopted and made a part of that judicial 
power, not the mere dry forms of equitable jurisprudence, 
but its living essence and spirit; a spirit *q)al)le of grow- 
ing and adapting itself to the new conditions and sur- 
roundings presented. In .the great majority of cases 
where the plaintiff had the legal title to land, the posses- 
sion of wdnich was in the defendant, ejectment furnished 
complete, adequate and speedy relief. Where the plain- 
tiff was in possession, the common law courts could give 
no relief against an outstanding, threatening legal title, 
and equit}' stepped forw ard to cure the evil. Possession 
or non-possession thus became freciuently the determining 
factor in the question as to the sutficienc\' of the com- 
plainant's remedy inlaw; and by an eas)' transition, aris- 
ing, in part, from loose and careless statements by the 
courts, and, in part, from an overlooking of the principles 
of equity jurisprudence, we frequently find counsel urg- 
ing, and, we regret to sa)', courts sometimes sustaining, 
the broad proposition that a party cannot, under any cir- 
cumstances, exclusive of actual possession of the land, 
maintain a suit in equity to remove a cloud from the title ; 
thus substituting for the true, broad, reasonable lule of 
equity, a statement of the fact which ordinarily author- 
ized the application of that rule, and applying such state- 
ment of fact as an iron rule, regardless of reason. 
Mr. Pomeroy states the true doctrine, as follows: 

" As to whether possession b\' a plaintiff is necessary 
before he can resort to equity to remove a cloud, there 
api^ears to be some conflict of opinion, arising from loose 
and careless statements of judges, and an overlooking of 
the principles of equity in regard to the exercise of its 
jurisdiction. When the estate or interest to be protected 
is ecjuitable, the jurisdiction should be exercised whether 
the plaintiff is in or out of possession, for under these cir- 
cumstances legal remedies are not possible; but when the 



71 

estate or interest is legal in its nature, the exercise of the jur- 
isdiction ilependsupon the adequacy of the legal remedies. 
Thus, for example, a plaintiff out of possession, holding 
the legal title, will be left to his remedy by ejectment, 
under ordinary circumstances ; but where he is in posses- 
sion, and thus unable to obtain any adequate relief, he 
may resort to equity. Where, on the other hand, a party 
out of possession has an equitable title, or where he holds 
the legal title under circumstances that the law cannot 
furnish him full and complete relief, his resort to equity 
to have a cloud removed ought not to be questioned." 

3 Pomeroy's Eq. Jur. sec. 1399 n, and cases cited. 



Where land is \acant and unoccupied, and the construct- 
ive possession of the holder of the true title is undisturbed, 
the law refuses to aid any party for any purpose. It will 
not adjudicate the title or right of possession. The want 
of an adequate remedy at law is as absolute as it is when 
the plaintiff has the actual possession. A large propor- 
tion of the valuable lands of this country are unoccupied. 
In some instances lands having great value for some pur- 
poses are not even susceptible of occupation. Owners 
and purchasers are not indifferent about the title to such 
lands. A. cloud upon the title to unoccupied land is not 
less injurious to the owner than it would be if he was in 
possession ; and the ground of his equity to have his title 
quieted, and clouds removed, is precisely that upon which 
jurisdiction is assumed and relief granted to owners in ac- 
tual possession of their lands, viz : the law's inability to 
afford him a remedy. 

Accordingly, the allegations of the bill show such con- 
structive possession in complainant, of all the land but 
eight lots, as will enable it to maintain this action. 

Lamb v. I^arrell, 21 Fed. 9. 

2 Storey's Eq. Jur. sec. 700 n. (13 ed.). 

Bispham's Eq. sec. 575 (4th ed.). 

Lamb v. Biirbank, i Saw. 232. 



72 

SAi'r^ V. WilNajiiso)! (Aik.), 9 S. W. 307. 

JMillcr V. Nciman, 27 Ark. 334. 

Green v. Liter et al, S Cr. 249. 

Barr v. Gratz's Heirs, 4 Wheat. 223. 

G'Brien v. Crcitz, 10 Kas. 303. , 

Patton V. Luther, 47 Iowa, 336. 

Barrett v. Love, 48 la. 1 15. 

Coolidgc V Forward (Or.), 2 Pac. 393. 

Grand Rapids d- /. /?. Cri. v. Sparro-w, 36 Fed. 211. 

Smith V. Dean, 15 Neb. 432, s. c. 19 N. W. 643. 

Lejeiine v. Harmon (Neb.), 45 N. W. 630. 

Thompsoit V. Woo/f, 8 Or. 455. 

dark et al. v. 77/r Covenant, etc.. Ins. Co. 53 Mo. 

376. 
Beedle v. Mead, 81 Mo. 303. 
Spcigle V. Meredith, 4 Biss. 1 30. 
Bailsman v. AW/v (Minn.), 36 N. W. 335. 
Donnelly v. Simonton, 7 Minn. 167. 
Hamilto7i V. Bat/in. 8 Minn. 403. 
Oakley v. Hnrlbnt, 100 111. 204. 
Gage V. Abbot, 99 111. 366. 
Hardin v. Jones, 86 111. 313. 
/*/(?;- V. C//v f?/" Fond d'li Lac, 38 Wis. 481. 
LLager v. Shindlcr, 29 Cal. 55. 

A glance at the act of July 2, 1864, will show the im- 
possibility of comi^lainant acquiring any other than con- 
structive possession. The act grants to complainant some 
45,000,000 acres of land. The impossibility of taking ac- 
tual possession of each governmental subdivision of this 
area is obvious. Complainant has, as to nearly all of this 
vast area, the exact possession and seizin vested in it by the 
granting act ; and it is the evident intent of congress that 
that seizin should be sufficient to enable complainant to 
maintain any action necessary to protect its rights. 



73 

Section 336, Compiled Statutes of Montana, 1SS7, pro- 
vides: 

"An action may be brought by any person in possession, 
by himself or his tenant, of real property, against any 
person who claims an estate or interest therein adverse to 
him, for the purpose of determining such adverse claim, 
estate or interest." 

It is well settled that the possession required by this 
statute is an actual, and not a constructive one. 
Raton V. Giles^ 5 Kas. 27. 
CBriQii V. Creitz^ 10 Kas. 203. 
Pier ft a/. V. C/Vj' q/' Fond du Lac, 3S Wis. 479. 
Coolidgc V. Forivard (Or.), 2 Pac. 292. 
Rico V. Spejice, 21 Cal. 510. 
Curtis V. Sutter, 15 Cal. 262. 
C. P. R. R. Co. V. Dyer, \ Saw. 648. 

But the existence of this statute does not modify or al- 
ter the inherent powers of a court of equity to prevent or 
remove clouds upon title to land; and if the allegations 
of the bill would be suffcient to maintain this action, 
if Montana had no such statute, they are good now. 

Pier V. City of Fond du Lac, 3S Wis. 479. 

O'Brien v. Creitz, 10 Kas. 203. 

Eaton V. Giles, 5 Kas. 27. 

Coolidge V. Forward, (Or.) 2 Pac. 292. 

And as the authorities cited conclusively determine that, 
in the absence of the statute, the allegations of the bill 
would be sufficient, it follows that the court erred in hold- 
ing the bill did not show sufficient possession in complain- 
ant to maintain this action, of all the land but the eight 
lots possessed by Howell and Ping. And as the demurrer 
went to the entire bill, it should have been overruled. "If 



74 

tlic 1)111 is maintainable as to part of the land, the demur- 
rer will not lie." 

A\ P. R. R. Co. V. Roberts, 42 Fed. 736. 

Possession is not necessary to the maintenance of this 
bill imdcr the circumstances set forth in the bill. 

We have stated that the true reasons justifying resort 
to a court of equity is the insufficiency of the legal reme- 
dy. Sa3's the supreme court: 

"The objection, that there is a remedy at law, is only 
available where such remedy is as plain, adequate and ef- 
fectual as the remedy in equity." 

Siitlicrland \. PortJaiid etc. R. Co. 94 U. S. S06 (L. 

ed. 326.) 

In ■S/tayx, ct al. v. Nortoii., 48 111. 105, the court says: 

"As a general rule, where a party has a complete reme- 
dy at law, equity will not interfere, but leave the party to 
seek his rights through his legal remedy. But to this 
rule there are some exceptions, as where the relief in chan- 
cery is more complete and effectual. Morris v. Thomas., 
17 111. 112. Frazer \'. Miller, 16 111. 48." 

See :ilso 

.Sale V. MeLeaii, 29 Ark. 619. 
Eaton V. Troivbridge, 38 Mich. 457. 
Scoff V. Scott, 33 Ga. 104. 
JVevitt V. Gillespie, i How. (Miss.) 1 10. 
Moore V. Mu7in et al. 69 111. 594. 
Almojiy V. Hicks, 3 Head. (Tenn.) 42. 
7\hi11 v. Slaven, 40 Fed. 776-7. 
Lamb v. Farrell, 21 Fed. 5. 
BiDicc V. Gallagher, 5 Blatch. 487. 
Sniyflie v. Henry, 41 Fed. 715. 
Boycc^s Executors v. Grundy, 3 Pet. 215. 
I Storey's Eq. Jur. sec. 33. 



75 

Conceding, pro arguendo^ that defendants were in pos- 
session of this hind, would an action in ejectinent give 
comphiinant full, speedy and adequate relief? Plainly 
not. And this for two reasons; one growing out of 
the terms of the granting act; the other, arising from 
the position and number of the defendants in this 
case. 

We will consider these questions in the order stated. 
1. Under its grant complainant is entitled to a patent 
for this land. Such patent is of the greatest value to it as 
evidence of title. The defendant, Maria Amacker, (un- 
der whom the other defendants claim) has obtained from 
the government a patent purporting to convey the title to 
this land to her. Until that patent is declared void or can- 
celed the department is in duty bound to refuse to issue a 
second patent for this same land to complainant. The ques- 
tion as to the title to this land having been determined by a 
secretary, that question was and is rex adjudicata, and 
cannot be re-opened in that tribunal, although his succes- 
sor mav differ as to the law. A patent once issued can 
only be set aside by the courts. And it is the uniform 
and well settled practice for the department to refuse to 
issue a second patent while the first is outstanding and 
prima facie valid. 

U. S. V. Curtner, 38 Fed 3. 

Moore V. Bobbins, 96 U. S. 530 (L. ed. S50) 

U. S. V. Sckurz, 102 U. S. 378 (L. ed. 171) 

Bicknellv. Comstock, 113 U. S. 149 (L. ed. 962) 

Thorp Williams et al., 2 L. D. 114. 

Wis. Cent. R. R. Co. v. Siittka, 4 L. D. 344. 

Garric^iies v. A. T. <6 S. F. R. R. Co. 6 L. D. 543. 

Thomas J. Laney, 9 L. D. S3. 

This outstanding patent would embarrass the assertion 
of complainant's rights in an action in ejectment. The 



76 

successful conclusion of such a suit, and consccjucnt re- 
covery of the possession, would leave that patent outstand- 
ing, showing in defendants a title prima facie better than 
that of complainant, a cloud upon complainant's title, im- 
pairing the value of the property and still preventing com- 
plainant from obtaining the appropriate and proper evi- 
dence of its title; the evidence which the United States 
contracted to give it. Immediately upon the conclusion 
of the action of ejectment, complainant, to obtain com- 
plete relief and protect its own interests, would be com- 
pelled to institute another action to obtain precisely the 
relief prayed for in this case. That under such ciicum- 
stances the legal remedy is so inadequate as to justifv re- 
sort to a court of ecpiit\' in the first instance, regardless of 
the question of possession, is too clear for reasonable con- 
troversy. And such has been the constant ruling of the 
courts. 

Says the supreme court in I'au Wyck v. Kiicva/s^ io6 
U. S. 369-70 (L. ed. 204): 

"It follows from what we have said, that when the de- 
fendant made his entry of the lands in controversy and 
obtained a patent therefor, the title had passed from the 
United States, and, consequently, no right could be con- 
ferred upon him. Still, the patent gives color of title, and 
because of its issue, the officers of the land department 
have refused to give a patent to the company embracing 
the land, holding, as may be inferred, the view for which 
the defendant contends, that his right to acquire a pre- 
emptive right by settlement, continued until notice of the 
order of the secretary directing the withdrawal of the 
lands from market was received by the local land officers. 
The existence of the patent, therefore, embarrasses the 
assertion of the complainant's rights; that is, it prevents 
him from obtaining a strictly I'egal title which would 
enable him to recover possession of the premises by an 
action at law. The existence of the patent also creates a 
cloud upon the title of the land. Every instrument pur- 
porting b}' its terms to convey land from the original 
source of title, however invalid, creates a cloud upon the 
title, if it requires extrinsic evidence to show its in\alidity. 



77 

Pixley V. Hitgg'nis^ 15 Cal. 128. The existence of the 
patent, therefore, under these circumstances, furnishes 
ground for equitable relief. That relief, however, should 
properly be limited to a decree declaring the equity of the 
complainant, the invalidity of the title of the defendant, 
and enjoining him from the assertion of any claim to the 
property under the patent." 

In .S". /'. R. R. Cr;. V. Wiggs and Newman^ 43 Fed. 
333, Judge Sawyer met and decided this exact proposition. 
That action \vi>s in equity, brought to obtain a decree de- 
claring void and annulling a patent of the United States 
issued to a settler, for a quarter section of land, claimed by 
complainant as a part of the land granted to it to aid in the 
construction of its railroad. The defendant was in pos- 
session of the same, and the court, having held that the 
title to the land was in the railroad company, adds: 

"It is urged, that if the claim of the complainant be es- 
tablished, it has the legal title, and an adequate and com- 
plete relief at law, and that there is no ground for equita- 
ble relief or jurisdiction. But this patent is a cloud upon 
the complainant's title, which it is entitled to have re- 
moved. The existence of the patent gives color of title, 
and is recognized by the land department. Its existence 
embarrasses the assertion of complainant's rights, and pre- 
vents'it from getting a patent to the same land, to which 
it is entitled. These circumstances constitute grounds for 
equitable relief. The remedy at law is not equally ade- 
quate and complete." 

This question was again decided in the case of Smyth 

V. Henry, 41 Fed. 705, an action in e(juity to cancel a 

junior grant from the government, upon the ground that 

it was void bv reason of a prior grant of the same land. 

The court says: 

"As the state had previously conveyed title to Junalus- 
ka, the land was not subject to entry, and the junior grant 
to Henry was void. It, however, is color of title, and 
casts a cloud upon the title of the complainant, who has a 
clear equitable right to have such grant declared void by a 
decree of this court. The grant is regular on its face, and 
has been duly recorded, and is set up as a claim of title in 



78 

the pending action of ejectment. Its invalidity may be 
shown by evidence in such action at law, but that would 
not revoke the grant, and only a court of equity can ef- 
fectuallv remove this cloud from the title of complainafit." 
P. 710." 

And again: 

"Courts of equity are better adapted to the settlement 
of cjuestions relating to the title to land where different 
titles are claimed under different patents and entries, and 
such qiiestions ought to be excluded from courts of law." 
P. 716. 

Judge Cooley, in Eaton v. Trozvbridge^ 38 Mich. 457, 

an action brought to quiet title, in answer to defendant's 

objection that plaintiff had an adccjuate remedvat law, and 

that equity had no jurisdiction, savs: 

"But there was a further reason why this bill was 
proper. The question involved was such that if the de- 
fense at law should succeed, the title of complainant of 
record would still be imperfect and open to disputes; and 
where that is the case it is manifest that the remedy at law 
cannot be fully adequate. The purpose of this suit is not 
only to determine the title, but to remove clouds upon it; 
and there is a cloud as long as by the record it is at least 
questionable if the title of defendant's is not frima facie 
better than complainant's. 

And see: 

Branch v. Mitchell^ 24 Ark. 43S-9. 
Francociir v. Ncrivhoiisc^ 40 Fed. 623. 
Polk V. Wendell^ g Cr. 99. 
Yancey v. Hopkins i Mumf. 427. 
Almony v. Hicks^ 3 Head (Tenn.) 42. 
Pedriea7i v. Hiuit^ Riley's Ch. 88. 
Hager v. Shindlcr^ 29 Cal. 58. 
7^/ion/psoi! \. Lyncti^ 29 Cal. 189. 
Heri-on v. Knapp^ (Wis.) 40 N. W. 149. 
Tcall V. Slavcn 40 Fed. 776-7. 
Harrall v. Gray (Neb.) 4 N. W. 5S7. 
Moore V. Mr/n?/^ et al., 69 111. 594. 



79 

Bunce V. Gallagher^ 5 Blatch. 481. 
Lo~v V. Staples^ 2 Nev. 211. 
Sale V. McLean^ 29 Ark. 619. 
W-^^A/c;/ V. Kncvals, 114 U. S. 373 ( L. ed. 167) 

2. The doctrine is fully established that where there 
are many defendants, each claiming a part of the land in- 
volved, and all claiming through a common source, equity 
takes jurisdiction in order to avoid a multiplicity of suits. 
In the case of DcForest v. Thompson, 40 Fed. 375, cer- 
tain lands claimed by one Wakeman were sold for the 
non-payment of taxes thereon, and purchased by the 
state. Subsequently the state sold the lands, under a de- 
cree from the Boone county court, in different parcels to 
various persons. Wakeman^s trustees and executors 
brought suit in equity against the purchasers to set aside 
the sales and the deeds made thereunder. The court 
(Justice Harlan concurring) sustained the equity jurisdic- 
tion, saying : 

"Each defendant's title depends upon the same ques- 
tions, and these questions all have relation to the proceed- 
ings in the Boone circuit court, and to the attempt to for- 
feit the lands for non-payment of taxes. It is a case of 
one person having a right against a number of persons, 
which may be determined as to all the parties interested 
by one suit If the plaintiffs brought ejectment against 
one of the defendants, and succeeded, the judgment would 
not conclude the other defendants, although the question 
in each case would be precisely the same. But if the 
plaintiffs can, by one comprehensive suit, have their rights 
declared and secured as to all the lands, the possession of 
which is withheld by the defendants, each claiming a par- 
ticular parcel, but all basing their claims upon the same 
proceedings instituted by the officers of the state, may 
they not invoke the jurisdiction of a court of equity upon 
the familiar ground that by suing in equity and bringing 
all the defendants before the court in one action, they can 
avoid a multiplicity of suits ? I think they can." 

The jurisdiction is exercised, and it may be regarded as 
fully settled, ^' in suits by a single plaintiff to establish a 



.so 

common right against a niimtrnus Ixxly of persc^ns where 
the opposing chiims of these inchxidiiais iiave some com- 
munit}' of interest in the questions at issue, or arise from 
some' common title." 

I Pom. Eq. Jur. par. 274. 

C. P. R. R. Co. V. Dyer cf a/., i Saw. 641. 

Crezc^s V. liiirchaiii^ i Ijlack, 352 ( L. ed. 91). . 

Apgar V. Christopherx., 10 Fed. 857. 

Bode V. Ncic Eiiglajid Invest. Co. 42 Fed. 65S. 

"Courts of equity have fretjuenth interposed when legal 
questions alone were involved, if the remedy at law was 
not clear, certain or adequate. C'nurts will also interpose 
to prevent a multiplicit\- of suits, where the suhject mat- 
ter of contest is held hy one iiulividual in opposition to a 
number of persons who coiitro\ ert his right, and who 
hold separate and distinct interests depending upon a com- 
mon source. * * * The right of a court of chancer\- 
thus to interpose is regarded as among the most salutary 
portions of its jurisdiction. The plaintiff by its interpo- 
sition is relieved from the necessity of bringing a number 
of suits at law, against different individuals, to quiet the 
same common right, wheie each suit would establish only 
the particular right in question, between the plaintiff and 
the defendant in that suit." 

Nevitt v. G/7/e.yp/\\ i How. ( Miss.) 110. 

"The prevention of litigation, under some circumstances, 
forms a subject for chancery jurisdiction. Where a per- 
son has a right, .vhich various persons niay controvert in 
different actions, to pre\ent multi])licit\- of suits, equity 
will lend its aid, and direct an issue to try the right. * * 
* * It is alleged in the bill that there are several lots 
levied on as the property of the defendant, Morgan. In 
this point of view, the case is clearly within the principle 
on which chancery entertains bills of peaces In Lord 
Tenham v. Hubert (2 Atk. 483), Lord Hardwick ob- 
serves: 'It is certain where a man sets up a general ex- 
clusive right, and where the persons who controvert with 
him ai'e numerous, and he cannot bv one or two actions 
at law quiet that title, he may come into this court, first 
by a bill, which is called a bill of peace, and the court 
will direct an issue to determine the right.'" 

Morgan v. Morgan ( Ala. ), 3 Stewart, 3S5. 



81 

The facts set forth in the bill bring this case within the 
rule as laid down in the above authorities, and the court 
will, upon this ground, take jurisdiction of this cause, and, 
having taken jurisdiction, will then proceed to hear and 
determine the entire matter. 

Wc submit tnat the court should enter an order revers- 
ing the decree entered herein by the United States Circuit 
Court for the District of Montana, and ordering the de- 
fendants to answer, as prayed in said bill. 

Fked. M. Dudley, 

Solicitor for AjDpellant. 



^. \3 



United States Girciilt Court 

DF APPEALS. 

For THE Ninth Circuit. 

NORTHERN PACIFIC RAILROAD COMPANY, 

AppcUani, 
vs. 

MARIA AMACKER, ET AL., 

Respondent. 



Massena Bullard, 
Thos. C. Bach, 
, Solicitors for Respondents. 




^ C ^^&^^ »^ / ^^ 



. "^ -.*i. ^.*»; 



United States GirciJit GoUrt 

OF APPEALS. 

For the Ninth Circuit. 



NORTHERN PACIFIC RAILROAD COMPANY, 

Appellant, 



vs. 
MARIA AMACKER, ET AL., 



Respondent. 



F?E:^F=o^>JIZ^E:^»I-^'^ 13F=?ie:f". 



The first question which arises in this case, is — 

What lands are included within the withdrawal 
clause of section six (6) of the grant to the Plaintiff ? 

It will be seen from an investigation of Plaintiff's 
authorities, whether taken from the Land department or 
from the Courts, that no one of them presents the same 
state of facts as exist in this case. 

It appears from each authority which he cites, that the 



land in controv'ersy was subject to no claim or right, was 
unappropriated, etc., at the time of filing the map of 
general route, — and we are not called upon to meet such 
a state of facts in this case. 

The land in controversy on this appeal at the time of 
filing the map of general route was subject to the filings 
at least of Scott, Glick and Wallace. 

Was this land then within the terms of the withdrawal 
clause ? 

After several pages of argument, counsel for the Plain- 
tiff declares on page 20 of his brief that section six (6j 
"must be constructed precisely as though it read as 
follows : 

"The President of the United States shall cause the 
lands to be surveyed for forty miles in width on both 
sides of the entire line of said road after the map of the 
approximate line thereof shall be filed in the general land 
ofilce, and as fast as required b}' the construction of said 
road; and the odd sections of non-mineral, public land, to 
which the United States have full title, not reserved, sold, 
granted, or otherwise appropriated, and free from pre- 
emption or other claims or. rights, shall not be liable to 
sale, pre-emption or entry before or after they are sur- 
veyed, except bv said compan}' as provided in this act." 



We believe that his conclusion is correct, and that his 
wording of the law is a clear expression of the meaning 
of the section — and according to his able argument and 
conclusion the only land which come within the with- 
drawal or prohibitory clause are "the odd sections 

, to which the United States have full title and free 



from fre-eniption or other claims or rig'hts. 

Such is the conclusion of able counsel after having 
devoted months of study and thought to the subject. It 
appears from his conclusion that lands which, at the time 
of the filing of the map of general route, were subject to 
(or not free from) pre-emption or other claims or rights, 
are not within the withdrawal or prohibitory clause. If 
he is correct (and we think he is), the land in contro- 
versy is not within the terms of the withdrawal clause; and, 
therefore, was subject to location by McLean, because it 
was at the time of the filing of said map, subject to the 
pre-emption claim or right of at least Scott, Glick and 
Wallace, if not Wetler also. 

The conclusion reached by the Appellant as above 
stated is not without authority, which we will cite, not 
authority in way of decision of courts, but authority 
which has been declared and which counsel declares to 
be entitled to great respect, to wit: — Decision of the 
Land Department — and the conclusion is also sustained 



—4— 

by sound public policy and by reasoning fully recognized 
by the courts. 

After considerable research counsel for Respondent 
have been unable to find any case in a court sustaining 
the proposition that lands which at the time of filing the 
maps of general route are not free from pre-emption 
claims, are not within the withdrawal clause, nor are we 
able to find decisions of courts to the contrary; and we 
submit with considerable diffidence our own argument 
upon the question. 

a. If all odd sections within the limit were in- 
cluded by Congress, that eminent legislative body would 
have said so, and would have used the woids " odd sec- 
tion " without the qualifying clause or expression " here- 
by granted," etc. 

h. The granting clause a grant in prcesenti, and 
has always been held so. See authorities in Appellant's 
brief. 

And it has always been held that Congress will not 
be presumed to have granted such of the public lands as 
have, at the time of the grant, private rights attached 
thereto, unless the grant positively included it. 

See Newhall vs. Sanger, 92 U. S., 761. 

Leavanwoot \\. R. Co. vs. U. 8., 92 U. S., 733, and 
cases cited. 



— 5— 

c. The decisions of the Land Department have 
uniformly lield, from the first case to the last that land 
at time of filing map of general survey subject to any fil- 
ing recognized by law, did not come within withdrawal 
clause and was subject to entry thereafter by citizens. 

See N. P. II. R. Co. vs. Gyrive, 8 Land Dec, 380. 
In re Donovan, 8 Id., 382. 
K. R. Co. vs. Brown, 10 Id., 662. 

And il is held by the Courts that such decisions are 

entitled to great respect. 

See Hastings & Dakota K. R. Co. vs. Whitney, 132 U. S., 
357, and cases cited. 
Also cases cited on p. 24 of Appellant's brief. 
Also, N. P. R. R. Co. vs. Sanders, 46 Fed., 239-242. 

d. Such a construction is in accord with sound 
public policy. The policy of the Government was to en- 
courage the building of a railroad to the Pacific Coast, 
and that the road should be built as speedily as possible- 
If land which, at the time of filing of the map of general 
route was then to be withdrawn from any claim except 
that of the railroad company, and so held withdrawn un- 
til the definite map should be filed, there would be a 
premium put upon delay; for the company' could file its 
map of general route as soon as possible and postpone 
the filing of the map of definite route as long as possible, 
and thereby indulge the anticipation of lapsed filings 



—6— 

which were in force at the time of filing the former 
map. 

The Supreme Court of the United States, comment- 
ing upon this view of the law, in the case of Leaven- 
worth Railroad Company vs. U. S., sa3's: 

" In the face of this, it is hard to believe that Con- 
gress meant to hold out inducements to the company to 
delay fixing the route of this road, until a contingency 
had happened, which the act did not contemplate. Be- 
sides the improbability that Congress would offer a pre- 
mium for delay in making a railroad," etc. 

The next question to be considered is: 

Is the filing of a declaratory statement under section 
2262 et seq. of the U. S. Revised Statutes of 1878, such 
a claim or right as is included within the expression 
" pre-emption or other claims or rights " in Sec. 3 of the 
grant. 

The Appellant claims in his brief that the expression 
referred to does not include property subject to the filing 
of the declaratory statement, which merely gives a right 
to purchase, but includes only the pre-emption entry, 
which, as he says, on p. 23 of his brief, "is only made 
upon paying to the United States the minimum price for 
such land." • 



—7— 

Can it be supposed that Congress solemnly legis- 
lated, that Congress carefull}' so worked a law, that the 
United States should not include within its grant to a 
railroad company land which it had already sold, land 
for which it had already received the purchase price, a 
price offered and received in accordance with its own 
law, and so offered and received before the law creating 
the railroad companv was enacted? 

The authorities are too numerous to need citation, 
holding that, when in compliance with the law the pur- 
chase price has been offered and received and final re- 
ceipt has been issued, the United States hold the' legal 
title only, and that the equitable interest is in the pur- 
chaser. 

See Whitherspoon vs. Duncan, 4 Wall, 210. 

The expression not onlv includes the final entry, but 
includes what it plainly says, a claim or right which one 
may have obtained under the pre-emption laws — and 
within that is the right to purchase when one has filed his 
declaratory statement. When, a citizen of the United 
.States has settled upon a portion of the surveyed public 
lands and has filed in the proper local office his declara- 
tory statement, he obtains a claim to that land and a right 
to purchase it — and his claim and right attach thereby. 



The sections of the revised statutes above cited plainly 
fix this right. 

Counsel insists that it appears from his complaint that 
these filings were not authorized by law, because they 
were not made by actual letters, and further that they 
have expired: because the acts of July 14th, 1870, and 
March 3d, 1891, apply only to actual settlers. 

Counsel has alleged in his complaint that which he 
cannot prove; because the law does not permit of it. 

Before a declaratory statement can be filed under 
section 2,254 R. S. of 1878, the one filing must have 
settled upon or improved the land; and he must make 
his filing within 30 days after settlement, under certam 
penalties. 

If the Railroad Company can allege or prove the 
non-settlement when there was no settlement'^ it may 
attempt to allege and prove it when there has been settle- 
ment, and call upon the settler, or those who have 
purchased from him after^atent issued, to prove all the 
prerequisites of title — and this it may do, before or after 
patent issued, and years after all witnesses shall have 
died. This certainh^ was never contemplated bv the 
law ; the records of the land office were and are one of 



—9— 

the safest tests as to whether or not the land is "free from 
pre-emption and other claims or rights." 

It must be remembered that it has been held that 
the patent of the United States issued from the Land 
Department has no force or effect unless the land was 
subject to the jurisdiction of the Department; that is to 
say, if the land was within a grant to a railroad, the 
patent would be without authority of law (in fact that 
holding is the basis of this action). Accordingly, scarcely 
a patent along the line of such a railroad can be of any 
effect whatever — no security of title can exist; because 
however perfect the record of the land office may be, the 
record there, if counsel is correct, can now, or fifty years 
from now, be attacked, and it may then be shown that 
the declaratory statement was filed by one who had not 
actually settled upon the land. And yet, counsel, as sup- 
porting his position, urges the safety of titles in those 
claiming under the railroad. 

We sav again that the record of the local land office 
is and must be the test and the only safe test, and that a 
filing there valid upon its face cannot and should not be 
attacked by the Appellant. 

As the Supreme Court of the United States de- 
clares: 



—10— 

It is not conceivable that Congress intended to place 
these parties as contestants for the land with the right in 
each to require proof from the other of complete per- 
formance of its obligation. Least of all it is to be sup- 
posed that it was intended to raise up, in antagonism to 
all the actual settlers on the soil whom it had invited to 
its occupation, this great corporation, with an interest to 
defeat their claims and to come between them and the 
Government as to the performance of their obligations. 

See R. II. Co. vs. Dunnieyer. 113 U. S., 62S». 
R. R. Co. vs. AVliitney, 132 U. .S., 357. 

And it is to be observed that the remarks quoted 
are not confined to pre-emption entries; theyincludt land 
to which the mere pre-emption right had attached. 

We conclude then, from the foregoing, that, the fil- 
ings of Scott, Glick and Wallace being regular upon 
their face, the Appellant cannot show (allegation is there- 
fore immaterial) that they were not actual settlers, and 
it further follows that they were entitled to the benefits 
of the acts of July 14, 1870, and March 3, 1871; and 
that their time to prove up had not expired, and that, 
therefore, the land was subject to the McLean entry and • 
not to the withdrawal cause. 

Again, it is to be observed that the penalt}- of not 
proving up in time is not forfeiture, and forfeiture will 



—11— 

not be presumed; the onl}- penalty is that the land then 
becomes " subject to the entry of any other purchaser." 
The word " purchaser " does not mean a railroad. 

1. Because the word " entry " has a well defined 
meaning in the law, and a meaning which includes a pre- 
emption or homestead entryman alone in case of unoffer- 
ed lands, and in case of offered lands also entry by 
private purchase. 

2. The word purchaser cannot apply to a railroad 
pfrant, because railroad grants were unknown at the time 
the law was enacted, and because it is held that the grant 
is not a purchase. * 

See N. P. U. R. Co. vs. lloberts, 10 Land Dec, 427-731. 
U. S. vs. Arredoiido, 6 Pet., 738. 

Where it is held that grants to railroads are con- 
strued strictly against the grantee; whereas the rule is 
well established in case of purchase, the construction is 
against the vendor. 

The policy has been not to work a forfeiture, ex- 
cept in favor of an entryman under the law, and where 
there is no such exception, the pre-emption claimant or 
homestead claimant has been allowed to prove up after 
time fixed by law has expired. 



—12- 

See opinion of Mr. Justice Lamar in R. R. Co. vs. 
Whitney, supra. 

Whether or not we are correct in our conclusion, 
still we maintain that the McLean homestead entry was 
and is valid under the act of Congress, April 21, 1876, 
19 Stat., 35. 

It is clamied that the failure of McLean to resist or 
appeal from the order cancelling his tiling, is tinal. 

We do not consider that to be the law. 

i.^ The order was without jurisdiction, and an}' 
circular of the Department authorizing such orders was 
without authority of law, and McLean had no right of 
appeal; 

See Glidden vs. R. R. Co., 30 Fed., 660. 

X. P. R. R. Co., vs. Burt, 3 Land Dec, 4<t0. 

2. If Ihe Land Department had authority of law to 
provide by circular for the cancellation of a homestead 
entr}', it also had authority to revoke or qualify that or- 
der, and that such circular had practically been revoked 
is apparent from its own decisions. 

.See In re .John W. Miller, 1 Land Dec, 57. 
X. P. H. R. Co , vs. Burt, snpra. 



—13— 

3- Had McLean lived he could have purchased the 
land under section 2 of the law of June 15, 1880 (Stat, at 
Large, Vol. 21, pages 237-238,) and this right was vested 
in his widow by section 2291, R. S., Ed. i87y. 

See Whitney vs. Maxwell, 2 Land Dec, 98. 
N. P. R. R. Co. vs. Burt, 3 Land Dec, 490. 
X. P. R. R. Co. vs. McLean, 5 Land Dec, 529. 

We respectfully submit to the Court, that upon all 
the questions of fact concerning the settlement of the 
prior pre-emption claimants and of McLean, the doctrine 
of res adjudicate applies. 

It appears upon the face of the complamt that there 
was a contest in the Land Office between McLean and 
the Plaintiff; that, while a decision of that department 
upon a question of law is not decisive, still its decision of 
the facts is final. 

See St. Louis Smelting Co. vs. Kemp, 104 U. S., 636. 
U. S. vs. Minoi , 114 U. S., 233. 
Lee vs. Johnson, 116 U. S., 48. 



Upon the remaining question, that which was raised 
by the Presiding Judge, to-wit: There are no reasons 



—14— 

why equity should assume jurisdiction, as Plaintiff as 
adequate legal remedy, we respectfully refer the Court 
to the opinion delivered b}' Judge Knowles. 

Respectfully submitted, 

Massena Bullard, 
Thos. C. Bach, 

Solicitors for Respondents. 



In the United States Circtiii Court of Appeals, for the Ninth 

Circuit. 



Northern Pacific Railroad Company, 

Appellant, 

vs. 

Maria Amacker, et. Al., 

Respondents. 



No. 3. 
Filed Jan. 25, 1892. 



Appeal from the United States Circuit Court for the District of 

Montana. 



BILL IN EQUITY TO QUIET TITLE. 



F. M. Dudley, for Appellant. 

Massena Bullard, Thomas C. Bach, for Appellee. 

Before Hanford, J., Hawley, J., and Morrow, J. 
By the Court, 

Morrow, J. 



This is a suit in equity seeking a decree, declaring that the defend- 
ants have no estate or interest whatever in or to certain lands and 
premises in Montana, claimed by the complainant ; that the title of 
the complainant is good and valid, and that the said defendants be 
forever enjoined and restrained from asserting any claim in or to 
said lands or premises adverse to the complainant. 

The land is described as the west half of northwest quarter, south- 
east quarter of the northwest quarter and southwest quarter of 
northeast quarter of Section 17, Township 10 north, of Range 3 west. 
Principal Meridian of Montana. The complainant claims title to 
this land under the Act of Congress, approved July 2d, 18t)4, provid- 
ing for the creation and organization of the Northern Pacific Rail- 
road Company and granting to the Company every alternate section 
of public land, not mineral, designated by odd numbers to the 
amount of twenty alternate sections per mile on each side of said 
railroad line through the territories of the United States, and ten al- 
ternate sections of lands per mile on each side of said railroad where 



2 Z^OBTHEBy Pacific Raileoad Co. vs. Xapja Amackze, et Al. 

ever it passes through any S:ate, and whenever on the line thereof, 
the United States has full title not reserved, sold, granted, or other- 
wise appropriated, and free from pre-emption or other claims or 
rights at the time the line of sa"d road b defiaitely fixed, and a plat 
thereof, filed in the office of the Commissioner of the General Land 
Office. 

The bill alleges that the complainant duly accepted the conditions 
and impositions of said Act, and fixed the genei-al routes of its road 
through the TeiTitory of Mintana, February 21st, 1872, and on July 
6th, 1882, it definitely fixed the line of its said railroad, extending 
opposite to and past the land in controversy, and thereafter con- 
structed and completed that portim of its raih-oad along said line of 
definite location ; that the land involved in this suit is within forty 
miles of complainant's line of road, and that said land was, at the 
date of the fixing of the general route on February 21st, 1S72, and 
at the date of fixing the definite line of the road on July 6ih, 1882, 
public land to which the United States had full title not reserved, 
sold, oranted or otherwise appropriated., and free from pre-emption 
or other claims or rights. 

This allegation Is modifiel by the statement that in 1868, certain 
persons filed declaratory statements under the provisions of the law 
of the United States granting pre-emption rights to settlers on the 
public domain, whereby they made pre-emption claims i-> the various 
sub-divisions of the land in question ; that one, A. J. Whitter filed 
one of said declaratory statements, May ISoh, 1S3S, claiming the north- 
west quarter of the northwest qaarter of said S.iCtion 17 ; that one 
"William M. Scott filed another of said declaratory statements, October 
5th, 1868, claiming the south half of the northwest quarter of said 
Section 17 ; that one Jerome S. Click filed another of .said declara- 
tory statements November 27th, 1868, c'aiming the west half of the 
southea-<t quarter, the southwest quarter of the northeast quarter 
and the southeast quarter of the southwest quarter of Secton 17, 
and Robert C. Wallace filed another of said declaratory statements 
Deceml)er 13th, 1860, claiming the southwest quarter of the north- 
east quarter of said Section 17 ; but it is alleged that the said claim- 
ants did not at any time inhabit or improve the lands so claimed, or 
erect dwellings thereon. 

That in February and March, 186S, all the lands in said Township 
10 north of Range 3 west, of Principal Meridian of Montana were 
surveyed by and under the direction of the United States Surveyor 



Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 3 

General of the District of Montana, and return made of the official 
plat of said survey to the Commissioner of the General Land Office 
at Washin:^ton, D. C, and on July 23d, 1SG8, the same was regularly 
filed in the Land Office at Helena, Montana ; and that by said survey 
it was determined that said land was agricultural and not mineral in 
character. 

It is farther stated that notice of fixing the general route of com- 
plainant's road was not received at the Land Office at Hilena, 
Montana, until May 6th, 1872, at which date there was received from 
the Commissioner of the General Land Office a Diagram showing 
that portion of the line of general route of said railroad extending 
througli said land district, together with an order instructing the 
land officers to withdraw fx-om sale, pre-emption, or other entry, all 
public lands in odd numbered sections within forty miles on each 
side of the line of general route of said railroad; that prior to the 
receipt of said diagram and order of withdrawal at the Land Office 
at Helena, Montana, to-wit : On May 3d, 1882, one McLean applied 
under the Homestead Act of May 20th, 1862, to enter the said sub- 
division of Section 17 as a homestead, and he thereupon made an 
affidavit as required by law, and filtd the same with the Registrar of 
the Land Office, an I paid the Receiver the sum of tjn dullars; but 
it is alleged that McLean did not then, nor at any time reside upon 
or cultivate said land for the term of five years or for any time 
■whatever; that, in 1879, pursuant to a circular of instructions is- 
sued by the Commissioner of the General Land Office, the Registrar 
and Receiver of the Land Office at Helena, notified McLean to ap- 
pear and show cause within thirty days, why said entry should not 
be cancelled for failure to make proof of compliance with the pro- 
visions of the Homestead law ; that McLean, failing to respond to 
said notice, the Commissioner of the General Land Office on Septem- 
ber nth, 1879, cancelled said entry ; that about August 20th, 1882, 
McLean died, leaving a widow, Maria McLean, who on March 15th, 
1883, made application to purchase said land under the provisions 
of the Act of Con^r<.ss approved July 15th, 1880; that the Com- 
missioner of the General Land Office allowed said purchase to be 
made, whereupon the complainant appealed from said action to the 
Secretary of the Interior, who lield tliat the land was excepted from 
the grant to the Northern Pacific Railroad Company, and allowed 
the applicant to purchase the land, and thereafter, on or about June 
17th, 1887, the United States issued to said Maria McLean its patent 



4 Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 

for said lands ; that after the death of McLean, his widow, Maria 
McLean, married John J. Amacker, one of the defendants in this 
suit; that the defendants claim title under said United States patent 
to Maria McLean, and by reason of the issuance of said patent to 
her, the United States refuses to issue to complainant a patent for 
said land. The complainant alleges that certain of the defendants 
have caused said land to be surveyed into town sites, with blocks, 
lots, streets and alleys, filed the plat of said town site in the Ofiice of 
the County Recorder for the County of Lewis and Clark, as an ad- 
dition to the City of Helena, and dedicated said streets and alleys to 
the public use ; said addition to be known as McLean Park addition 
to Helena ; that two of the defendants are in possession of and claim 
title to eight of said lots, but that the remainder of said land is va- 
cant, unimproved land, and that the complainant is seized thereof in 
fee simple; that the premises are of the value of thirty thousand 
dollars. 

To this bill defendants demurred, on the ground, that by plaintift's 
own showing, it was not entitled to the relief prayed for. 

The Court below sustained the demurrer and dismissed the bill. 

Plaintiff appealed. 

The Land Grant of the Northern Pacific Railroad Company under 
the Act of July 2d, 18G4, was a grant of quantity to the extent of 
twenty alternate sections per mile on each side of the line of the 
road through the territories of the United States, and ten alternate 
sections of land per mile on each side of the line of the road when- 
ever it should pass through a state. This grant was, however, sub- 
ject to diminution in quantity within these limits by reason of the 
fact that when the line should be definitely fixed, the United States 
might not have full title to all the odd numbered sections within the 
limits of the grant. These particular sections might not all be free 
from pre-emption or other claims or rights, and some might be re- 
served, sold, granted or otherwise appropriated. 

This probable loss to the railroad company of land in place within 
these preliminary limits was anticipated by Congress, and to make 
good such deficiency, and relieve claimants under the j^ublic land 
laws of the United States from controversies with the railroad com- 
pany concerning the validity of their claims, provision was made 
for compensating the company for such loss within the limits of an 
additional or indemnity grant. It was accordingly provided in Section 
three of the Act of July 2d, 1864, that, whenever prior to the time 



Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 5 

when the line of the road should be definitely fixed, any of said sec- 
tions, or parts of sections, shall have been granted, sold, reserved, 
occupied by homestead settlers, or pre-empted, or otherwise disposed 
of, other lands should be selected by said Company in lieu thereof, 
under the direction of the Secretary of the Interior, in alternate 
sections, and designated by odd numbers, not more than ten miles be- 
yond the limits of said alternate sections. 

By joint resolutions , of May 31st, 1870, these indemnity limits 
were extended by Congress, ten miles further on each side of the 
road, making what has been known and designated as the "second 
indemnity limits." 

The grant was therefore, not only one of quantity, but it was also 
in the nature of a float, to be located within the limits of certain 
exterior boundaries containing such a number of odd numbered sec- 
tions as would enable the company to obtain by selection within 
such exterior boundaries, the full quantity of land granted. 

The title of the company to lands within the primary limits at- 
tached to specific odd numbered sections as soon as they were capable 
of identification by the fixing of the definite line of the road op- 
posite to them and the filing of a plat thereof, in the Office of the 
Commissioner of the General Land Office. 

St. Paul and Pacific R. R. Co. vs. Northern Pacific R. R. Co., 
139 U. S. I. 

The right of the company to lands within the indemnity limits 
selected in lieu of lands lost in place within the primary limits at- 
tached at the date of the selection of such lands for that purpose. 

Ryan vs. Railroad Company, 99, U. S. 388. 

The land in controversy in this suit is part of an odd numbered sec- 
tion, within the primary limits of this grant, and although it was lost 
to complainant, so far as the action of the Land Department of the 
Government was concerned, by the issuance of a patent to Maria 
McLean on June 17th, 1887, it is no where alleged in the bill, that 
thi.s quantity of land has been wholly lost to complainant by reason 
of such action. This suit was not commenced until September 4th, 
1890, or more than three years after the patent was issued to Maria 
McLean. This period certainly afforded ample time to enable the 
complainant to make selection of a like quantity of land within the 
indemnity limits to make good the loss. 



6 Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 

It will be observed that the claim of Maria McLean was contested 
by the complainant before the Secretary of the Interior, and that 
patent was not issued to her until after that contest had been de- 
cided by the Secretary in her favor, and adversely to the complain- 
ant. By reference to the indemnity clause of section three of the 
Act of July 2d, 1864, we find that selections of land by the 
railroad company in lieu of lands lost in place, are directed to be 
made under the direction of tlie Secretary of the Interior. The 
same officer, who determined that this land did not belong to the 
complainant, is charged with the duty of withdrawing from other 
disposition, a sufficient quantity of lands within the indemnity limits 
to make good those lost in the granted limits. 
Priest vs. Railroad Co., 2 L. D. 508. 

Pursuant to this authority, the Secretary of the Interior has from 
time to time directed the Commissioner of the General Land Office 
as to methods of procedure tliat would secure the adjustment of 
complainant's graht,"at the. earliest possible time, and provide for the 
opening to settlement as speedily as possible, of all lands within the 
indemnity limits of such grants, not actually required to .supply the 
lands lost in place within the original granted limits. 4. L. D. 90. 
12 L. D. 196. Moreover, Congre.ss, by the Act of March 3rd, 1887, 
directed the Secretary of the Interior to immediately adjust in 
accordance with the decisions of the Supreme Court each of the rail- 
road land grants made by Congress to aid in the construction of such 
railroads. These measures have all been taken for the express pur- 
pose' of expediting the .settlement and adjustment of all claims 
involved in the grants to the railroads, whether within the original 
or indemnity limits. 

We think the acquiescence of complainant in the decision of the 
Secretary of the Interior for a period of more than thi-ee years, under 
the pending conditions, raises a presumption that it has made a 
selection of lands in the indemnity limits, in lieu of those described 
in the patent to McLean. 

If it has, the most that can be said U, that under the terms of the 
grant the complainant has the legal title to the land involved in this 
suit, and this is not sufficient. In Lnvis v.s. Cocks, 23 Wallace, 466, 
it was held "To be the universal practice of C.)urtsof Equity to dis- 
" miss the bill, if it be grounded upon a merely legal title. In such 
" a case, the adverse party has a constitutional right to a trial by 
"jury." 



Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 7 

But if, on the other hand, no mdemnity selection has been made, 
then the injuiy campiainant has sustained by reason of the loss 
of this portion of its grant should be made to appear in the 
bill by proper averment. 

It is proper to say here, that this defect in complainant's bill was 
not sug'j^ested either in the Court below, nor upon the argument in 
this Court ; Ave will, therefore, proceed to consider whether the bill 
states facts suiRcient in other respects to show a right to appeal to a 
Court of Equity, for the relief prayed. 

The bill alleges that two of the defendants are in pos.session of 
eight of the lots in the town site, into which the land has been 
divided. - - 

It asserts in effect that the complainant is the owner of the legal 
title to the whole tract, but it does not claim possession to any part 
of it unless the averment that the complainant " is seized thereof in 
fee simple " may be construed as alleging such a claim to the remain- 
der of the land not admitted to be in possgsssiq^ of the two defend- 
ants. But this averment is qualified by'thfe'further allegation that 
the land to which it refers " is vacant, unimproved land." 

" There is a seizin in deed, and a seizin in law; and the difference 
between the two is, that in one case an actual possession has been 
taken, and in the other there is a right like that of an heir upon 
descent from his ancestor, while the possos.sion is vacant before he 
has made an actual entry." 

3 Washburne on Real Property, 138. 

The averments of the complaint construed together must be taken 
as meaning that the complainant is seized in law and not in deed, 
and is therefore not in actual possession of the land. 

This Ijrings us to the question whether it is necessary for the com- 
plainant in a suit of this character to show by an averment in the 
bill that he is in possession of the premises. 

In Orton vs. Smtih, 18 How. 263, the Supreme Court declared the 
rule to be that : 

" Those only who have a clear, legal and equitable title to land 
connected with possession, have any right to claim the interposition 
of a C )urt of Equity to give thena peace or dissipate a cloud on title." 

In United States vs. Wilson, 118 U. S., 8G, the suit was in equity 
to have the conveyance of an adverse title declared fraudulent and 
void, and removed as a cloud on complainant's title. 

The Court said : 



8 Northern Pacific Railroad Co. r.s. Maria Amacker, et Al. 

" Having the legal title then, but being kept out of possession by 
defendants holding adversely, the remedy of the United States is at 
law to recover possession. Equity in such cases has no jurisdiction, 
unless it is required to remove obstacles which prevent a successful 
resort to an action of ejectment, or when after repeated actions at 
law, its jurisdiction is invoked to prevent a multiplicity of suits, or 
there are other specified equitable grounds for relief. 

Bills, quia timet, such as this is, to remove a cloud from a legal title, 
cannot be brought by one not in possession of the real estate in con- 
troversy, because the law gives a remedy by ejectment, which is 
plain, adequate and complete. 

This is a familiar doctrine of this Court." 

This doctrine was again declared in Frost vs. Spitley, 121 U. S. 
552, where the Court said : « 

" A person out of possession cannot maintain such a bill (a bill to 
remove a cloud upon title, and to quiet the possession of real estate), 
whether his title is legal or equitable : for if his title is legal, his 
remedy at law, by action of ejectment is plain, adequate and com- 
plete ; and if his title is equitable, he must acciuire the legal title, 
and then bi'ing ejectment." 

The case of Holland vs. Challen, 110 U. S. 15, was a Bill in Equity 
to quiet title, founded upon a statute of Nebraska, which provided : 

" That an action may be brought and prosecuted to final decree, 
judgment or order, by any person or per.sons, whether in actual 
possession or not, claiming title to real estate against any person or 
persons who claim an adverse estate or interest thereon, for the pur- 
pose of determining such estate and (juieting the title to such 
real estate." 

The Supreme Court held that this statute dispensed with the 
general rule of the Courts of Equity, that in order to maintain a 
bill to quiet title, it is necessary that the party should be in posses- 
sion, and in most cases that his title should have been established at 
law, or founded upon indisputable evidence, or long continued 
possession. 

The Court in explaining the rule of equity jurisdiction in the ab- 
sence of such a statute, said : 

"A bill of peace against an individual reiterating an unsuccessful 
" claim to real property, would formerly lie only where the plaintiff 
" was in possession, and his right had been successfully maintained. 
" The equity of the plaiutift' in such cases arose from the protracted 



Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 9 

" litigation for the possession of the property which the action of 
" ejectment at common law permitted. That action being founded 
" upon a fictitious demise, between fictitious parties, a recovery in 
" one actii)n constituted no bar to another similar action or to any 
"number of such actions." 

"A change in the date of the alleged demise was sufficient to sup- 
" port a new action. Thus the party in possession, though successful 
" in every instance, might be hai'assed and vexed, if not ruined, by 
" a litigation constantly renewed. To put an end to such litigation 
" and give repose to the successful party, Courts of Equity interfered 
" and closed the controversy. To entitle the plaintiff to relief in such 
" cases, the concurrence of three particulars wa,s essential: He must 
" have been in possession of the property ; he must have been dis- 
" turbed in its possession by repeated actions at law, and he must 
" have established his right by successive judgments in his favor. Upon 
" these facts appearing the Court would interpose and grant a per- 
" petual injunction to quiet the posse.ssion of the plaintiff again.st 
" any further litigation from the same source. It was only in this 
" way that adequate relief could be afforded against vexatious liti- 
" gation, and the irreparable mischief which it entailed." 

The Court further explained : 

" A bill quia timet, or to remove a cloud upon the title of real es- 
" tate, differed from a bill of peace in that it did not seek so much to 
■' put an end to vexatious litigation respecting the pi'operty, as to 
" prevent future litigation by removing existing causes of controversy 
" as to its title. It was brought in view of anticipated wrongs or 
" mischiefs, and the juri.sdiction of the Court was invoked because 
"the party feared future injury to his rights and interests. (Story's 
" Equity, Sec. 826.) To maintain a suit of this character, it was gen- 
" erally necessary that the plaintiff should be in possession of the 
" property, and, except where the defendants were numerous, that 
" his title .should have been established at law, or be founded on un- 
" disputed evidence or long continued possession." 

The statute of Nebraska, as stated by the Court, authorizes a suit 
in either of these classes of cases without reference to any previous 
judicial determination of the validity of the plaintiff's right, and 
without reference to his possession, and the bill was siastained on that 
jjround. 



10 Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 

But there is no such statute in Montana. The only law on the 
subject appears to be Section 366 of the Code of Civil Procedure of 
that State, which provides : 

" An action may be brought by any person in possession, by him- 
" self or his tenant, of real property, against any person who claims 
" an estate or interest therein adverse to him, for the pui-pose of de- 
*' termining such adverse claim, estate or interest." 

This is the language of Section 2')4f. of the Old Practice Act of 
California, adopted in 1851, anil the Montana Section was doubtless 
copied from that Act, but Section 251 of the Act of 1851, was su- 
perseded by Section 738 of the Code of Civil Procedure of Califor- 
nia, approved March 11th, 1872, whijh took effect January 1st, 
1873. The latter section pi-ovides ; 

" An action may be brought by any person against another, "who 
" claims an estate or interest in real property adverse to him, for the 
" purpose of determining such adverse claiui." The provision relat- 
ing to possession being omitted. 

During the existence of Section 254, of the Practice Act, the de- 
cisions of the Supreme Court of California, were uniform to the 
effect that an action could not be maintained under the provisions 
for the purpose of determining an adverse claim to, or estate or 
interest in real property unless the plaintiff, at the time of the com- 
mencement of the action, was in the actual po.ssession of the 
property himself, or in possession by his tenant. 

Dunlap vs. Kelsey, 5 Cal., 181. 

Ritchie v,s. Borland, 6 Cal., 33. 

Merced Mining Company vs. Fremont, 7 Cal, 319. 

Rico vs. Spence, 21 Cal., 504. 

Lyle vs. Rollins, 25 Cal., 437. 

Ferris vs. Irving, 28 Cal , 645. 
To the same effect is 

Cjolidge vs. Forward, (Or.) 2 Pac. R. 292. 
In Curtis vs. Sutter, 15 Cal., 259, it was held that this section en- 
largeil the class of cases in which ecjuitable relief could formerly be 
sought in (juieting title. It authorized the interposition of equity in 
cases where previously bills of peace would not lie, and it was e.x- 
plained that under this statute it was unnecessary for the plaintiff to 
delay seeking the equitable interposition of the Court until he had 
been disturbed in his possession by the institution of a suit against 
him, and until judgment in such suit had passed in his favor. 



Northern Pacific: Railroad Co. vs. Maria Amacker, et Al. 11 

It was sufficient, if whilst in possession of the property, a party 
out of possession claimed an estate or interest a'lverse to him. 

It will be observed that while it was detei'mined that this .section 
enlarged the equitable jurisdiction of the Courts in cases formerly 
reached by bills of peace and (luin, timet, it still required that the 
plaintiff should be in possession of the property to entitle him to 
seek such relief. Where a different rule has obtained, it has been 
under a statute similar to the one in Nebraska. Section 738, of the 
present Coile of Civil Procedure of California is such a statute, and 
under its provisions the plaintiff out of possession but claiming an 
estate or interest in real property, is now enabled to proceed in 
equity to remove a cloud therefrom, or quiet the title to the same, 
as was decided in Holland vs. Challen, supra, with respect to the 
statute of Nebraska. 

The case of the Southern Pacific Railroad Co. vs. Wiggs, 43 Fed. 
Rep. 333, was brought under the provisions of this statute, and al- 
though the question of possession was apparently not in controversy, 
its existence explains the position taken by the learned Judge in sus- 
taining the equitable jurisdiction of the Court. 

But it is urged that the sufficiency of this bill must be considered 
with reference to the allegation that the complainant can have no 
adequate relief except in a Court of Equity. 

Section 723 of the Revised Statutes of the United States pi'ovides 
that : 

"Suits in equity shall not be sustained in either of the Courts of 
the United States in anv case where a plain, adequate, and complete 
remedy may be had at law." 

It has been decided that this provision is merely declaratory, mak- 
ing no alteration wliatever in the rules of equity on the subject of 
legal remedies, but only expresses the law which has governed pro- 
ceedings in equity, since their adoption in the Courts of England. 

In the case of Whitehead v.s. Sliattuck, 138 U. S. 151, the Su- 
preme Court said : 

" It would be difficult and perhaps impossible to state any general 
" rule which would determine in all cases, what should be deemed a 
" suit in equity as distinguished from an action at law, for particular 
" elements may enter into consideration which would take the matter 
"from one Court to the other; but this may be said: that, where an 
" action is simply for the recovery and possession of specific real or 
"personal property, or for the recovery of a money judgment, the 



12 Northern Pacific Railroad Co. vs. Maria Amacker, et Al. 

" action is one at law. An action for the recoveiy of real property, 
"includin*^ damages for withiiokling it, has always been of that 
" cia^s. The light which in this case the plaintiff wishes to assert is 
" his title to certain real property ; the remedy which he wishes to 
" obtain is its possession and enjoyment ; and in a contest over the 
"title, both parties have a constitutional right to call for a jury." 

In the case at bar, two of the defendants are in possession of cer- 
tain subdivisions of tlie tract in dispute. As against them, upon the 
facts stated, a suit of ejectment would afford a plain, adequate and 
complete i-emedy. If tlie remainder of the laud is unoccupied as al- 
leged, we see no reason, as was said by the learned Judge in the 
Court below, why the complainant cannot take po'ssession of the 
same, and then bring the appropriate action to determine the title to 
same. 

The extensive land possessions of the complainant, and the hard- 
ship of taking possession of its lands before bringing such action 
cannot properly be considered in this case. The land involved in 
this suit amounts to about one hundred and sixty acres. There can 
hardly be any difficulty in taking possession of an unoccupied tract 
cf laud of such dimensions, located as this is, and we are not at 
libei'ty to import into this case considerations respecting other tracts 
that may be involved in a like controversy, and embraced in com- 
plainant's grant of forty-five millions of acres. 

It is further argued in favor of the equitable jurisdiction claimed 
for this case, that it will avoid a multiplicity of suits, but it appears 
that only two of the defendants are in possession, claiming title, ami 
exercising ownership as to eight lots. 

It woukl certainty not require more than one suit to determine 
thi'ir right of possession, and indeed the law is well settled, that 
under the Practice Act a<lopted in Montana, the plaintiff in an ac- 
tion in the nature of ejectment may join any number of difendants 
without regard to the extent or character of their possession.s. 

San Francisco vs. Biedeman, 17 Cal., 461. 
It appears, therefore, that the bill does not present a case coming 
within the equity jurisdiction of the Court. 

The decree of the Circuit Court is therefore affirmed. 



^^^X^^:^^?^ 



z 



IN THE 



United ^tate^ Cii'cuil! Court 

OK APPKAL, 

FOR THE NINTH CIRCUIT. 



LEM HING DUN, 

Appellant, 
VS. 

THE UNITED STATES, 

Jniervenor and Appellee. 



flecorft. 



Z. T. CASON, 

Attorney for Appellant, 
CHARLES A. GARTER, 

United States Attorney^ 
Attorney for Appellee. 



1892, 



Clerk of the U. 8. Circuit Court of Appeals. 



INDEX. 



Petition of Yung Kee 3 

Habeas Corpus, Order issued 5 

Testimony of Lem Hing Dun 6 

Testimony of Horn Gin Kee 10 

Testimony of Yeong Lick Look 12 

Order of Remand 16 

Assignment of Error on Appeal 17 



IN THE 



DISTRICT COURT 

OF THE 

UNITED STATES. 

NORTHERN DISTRICT OF CALIFORNIA. 



IN THE MATTER OF 



^ ,^. ^ , PHOTOGRAPH 

Lem Ming Dun, v qf 

PETITIONER. 
ON HABEAS CORPUS. 



PETITION. 



To the Hon. Judge of the 

District Court of the United States, Northern District of 
California : 

The Petition of Yung Kee respectfully shows : 

That Lem Hing Dun is unlawfully imprisoned, detained, 
confined and restrained of his liberty by Captain Cavalry, 



[4] 

Master of the Steamship City of Peking, in the City and 
County of San Francisco, State of California, Northern 
District of California. 

That the said iniprisonment, detention, confinement and 
restraint are illegal, and the illegalily thereof consists in 
this, to wit : 

That it is claimed by said Master that said passenger is a 
subject of the Emperor of China, and must not and cannot 
be allowed to land under the provisions of the Act of Con- 
gress of May 6, 1S82, entitled ''An Act to execute certain 
treaty stipulations relating to Chinese," and the acts 
amendatory thereof and supplementary thereto. 

That said passenger does not come within the restrict- 
ions of said Acts but on the contrary, your petitioner al- 
leges that said passenger was a resident of the United 
States and departed therefrom on the steamship Devon- 
shire, on the 30th day of December, 1881, Kwong Sue, 
7-11-12. 

That said passenger was born in the City and County of 
San Francisco, at 751 Sacramento Street, up stairs, in the 
year of 1870, H. S. 8. That his lather's name is Lem Oca 
Fong and his mother, Lee Shee. 

That he has applied to the Collector of the Port of San 
Francisco to be permitted to land, but said application was 
denied. 

That your petitioner is a friend of said passenger, and 
makes this petition in his behalf. 

Wherefore, your petitioner prays that a writ of habeas 
corpus may be granted direct to the said master, command- 
mg him to have the body of said passenger before your 
Honor at a time and place therein to be specified, to do 



[5] 

and receive what shall then and there be considered by 
your Honor concerning him, together with the time and 
cause of his detention, and said writ; and that he be re- 
stored to his liberty. 

Dated on the 8th day of January, 1891. 

YUNG (Chinese Signature) KEE. 

Petitioner. 



STATE OF CALIFORNIA, ] 

City and County of San Francisco, I ^^ 
Northern District of California, I 

United States of America. -' 

Yung Kee, being duly sworn, says that he is the 
Petitioner above named, and that he has read the fore- 
going petition, and knows the contents thereof, and that 
the same is true of his own knowledge ; that he is a m^v- 
chant residing and doing business in the firm of Duck Lung 
Chung, No. 723 Sacramento Street. 

Sworn to before me, this 8th day ol January, 1891. 

J. S. MANLEY, 

Commissioner of the Circuit Court of the United States 
for the Northern District of California. 



Let the writ of habeas corpus issue pursuant to the 
prayer of the petition, returnable on or before January loth, 
1891 • or in case the steamer on which said petitioner is 
detained has not cleared on that day, as soon as practicable 
after clearance, but before the departure of the steamer. 
And when the within named petitioner is produced, let him 
be admitted to bail in the sum of $1500, And ordered 
that the case be referred to Ward McAllister to take proofs 



[ 6 ] 

and report findings and judgment, as prescribed in general 
order of this Court in like cases. 

OGDEN HOFFMAN, 
[endorsed] J^<^<ige. 

Filed January 8th, 1891. 

Southard Hoffman, Clerk. 

By f. S. Manley, Deputy Clerk. 



IN THE DISTRICT COURT OF THE UNITED 

STATES IN AND FOR THE NORTHERN 

DISTRICT OF CALIFORNIA. 

The Hon. S. C. Houghton, Commissioner. 

In the Matter of the Habeas Corpus of ) 

> No. 10,196. 
LEM HING DUN. \ 

TUESDAY, JULY 21st, 1891. 

APPEARANCES. 
Lyman I. Mowry, Esq., appeared for the Petitioner. 

W. G. Witter, Esq., appeared for United States. 

LEM HING DUN. 

The Petitioner sworn. 

The Commissioner — O. What is your name? 

A. Lem Hing Dun. 

O. Where were you born? 



[ 7 ] 

A. In this county. 

Q. Whereabouts? A. I was born in this city on 
Dupont street, over the store of Quang Sung. 

Q. When? A. I was born Tung Gee gth year, yth 
month, 2nd day. (July 28th, 1870.) 

Q. When did you depart from this port for China, 
and by what steamer? 

A. Kwong Sue yth year, nth month, 12th day. 
(December 31st, 1881.) By the steamer Devonshire. 

Q. When did you return to this county, and by what 
steamer? 

A. December 31, 1890, by the City of Peking. 

Q. What is the name of the store over which you were 
born? 

A. Over the store of Ouan Sung. 

O. On what street? A. On Dupont street. 

Q. What number? 

A. I don't remember the number. 

Q. How long did you continue to live in that place? 

A. 12 years. 

Q. With whom did you go to China? 

A. With my mother. 

Q. Who else went on steamer with you, that you know? 

A. There was a friend with us. 

Q. What is his name? A. Wong Ah Ouong. 

Q. Where is he now? 

A. I don't know whether he came back here or not. 

Q. What is your father's name? 

A. Lim Dock Fong. 

Q. Where is he now? 

A. My father went home to China Kwong Sue 15th year. 

Q. What is your father's business? 

A. He keeps a general merchandise store. 

O. Whereabouts? A. Quan Sung, at that store on 
Dupont street. 

Q. Has he ever had any other business interests so far 
as you know? 

A. He used to be in the drug business, but he sold out 
that business Kwong Sue yth year. 



[ 8 ] 

Q. Whereabouts was he in drug business? 

A. He sold out the store of Ouan Sung to people for a 
drug business. 

O. Was he ever connected with any place of business 
in the State of California, except those two you have 
named so far as you know? 

A. After he sold out there he went up to Bouldin 
Island into business. 

O. When did he go up there into business, if you 
know? 

A. He went up there in the latter part of Kwong Sue 
7th year. 

Q. How long did he continue there in business? 

A. Well, he continued in business right there until the 
time he went to China. Then he turned the business over 
to my elder brother. 

Q. What was his name? 

A. Lim Git. 

O. When your father left here for China in what busi- 
ness was he engaged? 

A. He was in the merchandise business at Bouldin 
Island. 

Q. Had he any business in this city? 

A. He had no business here. He sold out. 

Q. Then when I first asked you what your father's 
business was, why did you say he was in business in this 
city? 

A. Well, he was in business here until the 7th year, 
and then he sold out and went to Bouldin Island. 

Q. Did you Hve in the same hou e all the time during 
the 12 years you lived in this city? 

A. Yes sir. 

Q. On what floor? 

A. I lived on the second story? 

Q. How high was the building? 

A. The building was three stories high. 

O. Did you live in a front room or a back room or in a 
middle room? A. In the front room. 

0. Did you learn any English? 



[ 9 ] 

A. I never did? 

Q. Dj you rene.iiber any person who livei in tliis city 
when you did? 

A. I know some of the boys there, the children I used 
to play with. 

O. Who were they? 

A. Yee Ah Oujn, Yee Ah Jun; well, I can't remember 
any more now. 

O. Do you remember any other persons than those 
you have named that lived here when you did? 

A. Well, it is a long time ago and I can't remember. 

O. What do you recollect about this city? 

A. Well, I remember of going to the theater here and 
such things. 

Q. What else? A. I have been to the restaurants, 
Wee Sung Low. 

Q. What else? A. Bung Sun restaurant, I remember 
that. 

Q. What else? A. I don't remember anything more. 

Q. How old is your mother. 

A. She is 57 years old this year. 

Q. How old is that brother that you have mentioned? 

A. He was 36 years old this year. 

Q. Where was he born? A. In China. 

O. How long ago did he come to this country? 

A. He came here 15 or 16 years ago. 

Q. Where was your brother when he left here for 
China? 

A. He was in that place, Ouan Sung when I was in 
this city, 

Q. In this city? 

A. He was there in the store. 

Q. Was he working there? 

A. He was there in business, attending to business. 

O. Do you remember seeing him when you went away? 

A. Yes sir. 

Q. Did he come down to the wharf to see you off. 
A. My father sent us oft, my brother did not attend to 
it. 



L lo] 

Q. What is your father's name? 

A. Lim Dock Foiig. 

Q. How old is he? A. 58. 

O. Have you any other brothers or sisters except the 
one you mentioned? 

A. No sir? 

Q. Has your mother any brothers or sisters? 

A. No sir; none. 

Q. Has your father any brothers or sisters? A. None. 

Q. When you went to China in what business was your 
father engaged? 

A. He kept the store of Quan Sung. 

Q. Did you ever go to school in this city? 

A. I never did. 

Q. Were there any other families besides yours that 
were living in the building where you were born? 

A. Well, on the floor I lived, there was only our family. 

Q. Were there any other familes living in the building? 

A. Well, there were some families on the third floor, 
but I don't know how many. 

Q. Have you any relatives in this country excepting 
your brother? 

A. He is the only near relative I have; of course, I have 
some belonging to the same family, or the same tribe. 

HOM GIN KEE. 

Call for the Petitioner sworn. 

The Commissioner — Q. What is your name? 

A. Hom Gin Kee. 

Q. What store are you connected wiih, if any? 

A. I am connected with the jewelry store of Kim Chin, 
807 Washington street, in this city. 

Q. What is the name of the store? 

A. Kim Chin. 

O. Are you connected with any other business here in 
this city? A. That is the only store. 

Q. Have you any other name than Hom Gin Kee? 

A. Hom, Gar Suey. 



[II] 

O. Have you been here as a witness before? 
A. Yes sir, I was here Vjefore. 
O. Which name did you give? 
A. Horn Gin Kee. 

O. How many times have you been a witness in these 
cases? 

A. Once or twice. 
Q. Well, which is it? 
A. Twice, I think. 
Q. How long ago was the last time? 
A. I don't remember. 

Q. What were the names of the petitioners in the cases 
in which you appeared here? 

A. I don't remember the names. 

Q. Were they persons who were born in this country? 
A. Yes sir. 
Q. Men or women? 

A. Well, they were males; they were small boys- 
O. And you do not remember the name of either one 
of them? 

A. I did not pay much attention to that. A business 
man has business to attend to, he is busy, and when friends 
come and ask me to come down here I come down here 
and don't remember it any further. 

Q. How many weeks ago is it since you appeared here 
as a witness? 

A. It is either the latter part of last year or the first 
part of this year. I don't remember exactly. 
Q. When did you first come to this country 
A. I first came here Tung Gee ist year. It is 23 years 
all told since I came here. 

Q. Have you been in this city ever since then? 
A. Yes sir. 

Q. Do you know this petitioner, Lim Hing Dun? 
A. Yes sir. 

Q. What is his name? A. Lem Hing Dun. 
Q. Do you know where he was born? 
A. Over the store of Quan Sung. 

O. When? A. He was born Tung Gee 7th or 8th 
year, I think. 



[ -2] 

Q. What month? 

A. I don't recollect that month. His father was a 
friend of mine, and when this boy was born I gave him 
some presents and attended the feast. 

O. Do you know when he left here for China? 

A. He went home Kwong Sue yth year. 

Q. What month and day, if you know? 

A. I don't recollect. I think it was about the end of 
the year. 

O. Is your memory better with relation to the time 
when this boy was born, and to the time when he left this 
country lo years ago, than it is in relation to the time you 
came here as a witness, less than a year ago? 

A. I can't recall the exact time now. 

Q. As I understand you, you cannot recall the name of 
any petitioner in whose case you have appeared as a wit- 
ness. Is that the fact. 

A. I can't remember. 

The Commissio7icr. — That is all. 



YEONG LICK LOOK 

Called for the Petititioner sworn. 

The Commissioner — Q. What is your name? 

A. Yeong Lick Look. 

Q. What is your business? 

A. I am in the liquor business. 

Q. Whereabouts? A. On Dupont street. 

Q. Where? A. I keep the store of Quong Wing 

Sung, 819 Dupont street. 

Q. A liquor store? A. Yes sir. 

Q When did you first come to the country? 

A. 1 came here in the 4th year of Hom Foon, (1854). 

O. Have you been here ever since then? 

A. I have been home to China once. 

Q. When did you go to China? 

A. Tung Gee 4th year, (1865). 



[13] 

Q. How long did you stay there then? 

A. II montlis. 

Q. Do you know this petitioner Lim Hing Dun? . 

A. Yes sir. 

O. Do you know where he was born? 

A. He was born over the store of Ouan Sung on Sacra- 
mento and Dupont. 

Q. On what floor? 

A. He was born on the third floor. 

O. Was it a front room or back room his people occu- 
pied? 

A. I never went up there; I don't know. 

Q. How many stories high was that building? 

A. Three stories. 

Q. How do you know he was born on the third floor? 

A. His father told me. 

O. If you never went up there, how do you know he 
was born there? 

A. Well, I went to the feast with him once, and his 
father told me about it. 

Q. When was he born? ° 

A. I don't remember exacdy; it was either Tung Gee 
8th year, or Tung Gee gth year. 

O- How can you recollect so exactly as th^t? 

A. Well, they had a feast at that time, and I remember 
it from that. 

O- What is his father's name? 

A. Lem Dock Fong. 

O. What was his business? 

A. He kept the store oi Quan Sung. 

Q. Where was that store? 

A. On the corner of Dupont and Sacramento. 

Q. Where is his father now? 

A. His lather sold out that business and went up to 
Bouldin Island; but he is in China now. 

O. When did he sell out that business and go to Bouldin 
Island? 

A. Kwong Sue 7th or Sth year, about that, I am only 
guessing. 



[ '4] 

Q. Do you know when this boy went to China; if so, 
when? 

A. He went home Kwong Sue yth year, nth or 12th 
month. I bought them some presents when they went 
away. 

Q. Have you anything to fix that date upon your mem- 
ory, except that you bought some things for them. 

A. I don't remember that exactly; I am not testifying 
exactly with regard to it; I am only guessing. 

Q. Have you anything to bring that date to your rec- 
ollection? 

A. Well, I made some presents and I ought to remem- 
ber it from that fact. 

Q. Is that the only way you remember it? 

A. Yes sir. 

O. How old is this boy's father now? 

A. He is between 50 to sixty — something about the 
same as I am. 

Q. How old are you? 

A. I am 56 years old. 

Q Has this boy any relatives in this country? 

A. He has an elder brother up on Bouldin Island. 

Q. How old is he about? 

A. Over 30. 

O. Where was he born, do you know? 

A. He was born in China. 

The Commissioner — That is all. 

Mr. Moivry — That is the case your Honor. 

Mr. Witter — I will offer in evidence in this case, the 
statement taken on board the steamer, January 5, 1891, be- 
fore Mr. Carlton Richards, also the affidavit of Young Kee, 
presented to the Collector of the Port, on or about the 7th 
day of January, 1891, to facilitate the lending of this per- 
titioner; also ihe statement made in the United States At- 
torney's office, January 9, 1891, also letter addressed by 
the Collector ol Customs, T. G. Phelps, Esq. , to the Post- 
master at Bouldin Island, California, and also reply thereto, 
signed by Jos Zeller, Assistant Postmaster, Bouldin Is- 
land, Cal. 



[15] 

The Commissioner — In this case the pertitioner claims to 
have been born in this city, and to hav5 lived here until 
he was eleven and a half years of age, when, in December, 
1 88 1, he left here lor China. 

In his statement made on board the steamer to the Cus- 
tom's Officers; and also in his statement made in the Dis- 
trict Attorney's office, he stated he remembered no one 
who lived in this city when he was here before. He here 
states that he remembers only two children who lived here 
at that time. 

In his statement made on board the vessel he stated he 
remembered nothing about the city. He here states he re- 
members nothing except theatres and restaurants. 

In one of said statements he stated that his brother at 
the time of his departure, was engaged m business at Boul- 
din Island; that he came down to the city and went to the 
wharf with himself and his parents at the time of his de- 
parture. He here, however, states his brother was in busi- 
ness in this city, and did not accompany the party to the 
wharf upon their departure. 

In one of said statements he stated, there were no other 
families in the building in which he lived. He here states 
there were other families? 

The first witness examined in substantiation of the peti- 
tioner's claim, is a man whose face is extremely familiar 
to me, although he states he has been examined here as a 
witness but twice. He is one of those persons who have to 
be seen to be appreciated. I do not know but what his 
testimony as given will make a very fair record, but he has 
created such an impression on my mind from previous ex- 
perience with him that it would be as far as I am concerned, 
entitled to no weight whatever. But I do not desire to 
prejudice the case of the petitioner in any way, yet the im- 
pression is very vivid on my mind, but I feel that I do no 
injustice in regard to it. The recollection of this witness 
in regard to matters of a very recent date is remarkably 
poor. In regard to matters of a later date which would 
have seemed, with one reason, to have fastened themselves 
upon his memory, is somewhat more indistinct. He states 



[i6] 

here, he has testified in two cases, but does not remember 
the names of the petitioners, or when they g;ave the testi- 
mony. 

The testimony of the last witness seems very straightfor- 
ward. He is a man of very unusal intelligence, but I think, 
however, his testimony is not sufficient to overcome the in- 
herent improbabilities in the case, particularly when the 
statements of the petitioner are so contradictory and im- 
probable. 

I think the testimony in this case cannot justify me in 
doing otherwise, and I will therefore recommend a remand. 

Mr. Mowry — To which ruling we take an exception. 



[Title of Court and Cause.] 

ORDER OF REMAND. 

This matter having been regularly brought on for he.ir- 
ing before the Court and the Judge thereof upon the issues 
joined herein, the United States Attorney having appeared 
and intervened on behalf of the United States, and the same 
having been duly heard and submitted and due consider- 
ation thereon had, it is by the Court and Judge thereof now 
here ordered and adjudged : 

That the above named person in whose behalf the Writ 
of Habeas Corpus herein was sued out, was not at the date 
of the petition herein illegally restrained of his liberty as 
therein alleged. 

It is further adjudged and found that became from China 
by the steamship "City of Peking," and is a Chinese person 
forbidden by law to land within the United Slates, and 
has no right to be or remain therein : 

It is therefore ordered that the said above named per- 
son be remanded by the United States Marshal for the 
Northern District of California, to the custody whence he 
was taken, to wit : on board of the said steamship to the 
custody of the master of said steamship, or in case of a 



[17] 

change of master, to the custody of the master thereof, 
whoever he may be at the time of this order of remand, or 
to place the said above named person in the hands and 
charge of any party on board said steamship for the time 
being representing the master or then in charge of said 
steamship in the absence of the master, or for the time 
being exercising control or authority thereon ; this order 
to be executed as to said steamship, whether still in port 
not having departed therefrom or having departed and re- 
turned since the proceedings herein were instituted. And 
in case said steamship has departed and not returned, or 
for any other reason the said above named person cannot 
be placed on said steamship, that the said Marshal place 
him upon any other vessel available for the purpose, pay- 
ing the necessary passage money, for the purpose of de- 
porting him out of the United States and transpdrting him 
to the port of Hong Kong whence he came. And for the 
purpose of carrying this order into effect, it is further or- 
dered, that the said Marshal take the said above named 
person iuto custody and him safely keep till said order shall 
be fully executed. 

Entered 31st day of July, 1891. 

ROSS, 

[endorsed] District Judge. 

Filed July 31st, 1891. 

Southard Hoffman, Clerk. 



[Title of Court and Cause.] 

ASSIGNMENT OF ERRORS ON 
APPEAL. 

The petttioner, Lem Hing Dun, having taken an appeal 
to the United States Circuit Court of Appeals, for the Ninth 
Circuit, from an Order and Judgment of Remand rendered 



[i8] 

in the said District Court, presents the lollowing assignment 
of errors on said appeal. 



That the order and judgment of the said District Court 
is against the evidence. 

II. 

That the order and judgment of the said District Court 
is against the law. 



[Title to Court and Cause.] 

STIPULATION. 

It is hereby stipulated and agreed by and between the 
parties hereto that the record in the above entitled cause to 
be used on this appeal shall be the petition for the writ of 
Habeas Corpus, the evidence taken before the Commiss- 
ioners of the United States District Court for the Northern 
District of California and all the testimony introduced in 
the said cause, the Order of Remand made by the District 
Court and Assignment of Errors. 

Z. T. CASON, 

Attorney for Appellant. 
Charles A. Garter, 

United States Attorney. 

By W. G. Witter, Ass't. U. S. Attorney, 
Attorney for Appellee. 



[I9J 

[Title of Court and Cause.] 

STIPULATION. 

It is hereby stipulated and agreed that the foregoing 
record contains true and exact copies of the petition for 
the writ of Habeas Corpus, Evidence introduced in the 
above cause, Order of Remand, Assignment of Errors, 
and Stipulation as to the Record, as they appear on file in 
the Clerk's office of the United States Circuit Court of 
Appeals for the Ninth Circuit. 

Z. T. CASON. 

Attorney for Appellant. 
Charles A. Garter, 

United States Attorney. 

By W. G. Witter, Ass't U. S. Attorney, 

Attorney for Intervener and Appellee. 



United States Circuit Court of Appeah for the Ninth Circuit. 



Lem Hing Dun, ) j^^ ^ 



vs. 



The United States. 



) 



Filed Jan. 1. 1892. 



A motion to dismiss the appeal in this case has been made for the 
reasons that the appellant has failed to have the record printed and 
copies thereof furnished to the adverse party as required by Rule 23 
of this Court ; and that the attorney for the appellant is not yet pre- 
pared to ai-gue the case, although it vras docketed in this Court prior 
to the beginning of the present term in October last. 

We have acted upon and granted similar motions at this session. 
In doing so we were intiuenced by representations made in open 
Court that counsel for the appellant in each case had declared an in- 
tention to abandon the appeal and by the fact that the motions were 
not opposed by smy attorney appearing generally in behalf of the 
appellants. But we wish to have it understood that we have not in- 
tended to establish a precedent or to give a construction to the rules 
authorizing motions to dismiss prior to the actual calling of the 
cases for argument. 

This Court has but one term in each year, and Rule 17 does not 
warrant the dismissal of a case until it shall have been called for 
hearing at two terms successively. If upon such call at the second 
term neither party is ready to argue it, a case will then be dismissed 
by the Court upon its own motion ; the object of the rule being to 
prevent the slumbering of cases after both parties have lost interest 
therein. 

Rule 22 provides that where no counsel appears and no brief has 
been tiled for the plaintiff in error or appellant, when the case is 
called for trial, the defendant may have the plaintiff called and the 
writ of error or appeal dismissed, tt is cei-tainly plain that under 
this rule a motion to dismiss made before the case is regularly 
readied and called for trial is premature. 

Rule 23 provides for printing of the record and service of copies 
to be made at least six days before the trial, and that if the record 



2 Lem Hing Dun vs. The United States. 

shall not have been printed when the case is reached in the regular 
call of the docket, the case may be dismissed. 

The time when a motion to dismiss for failure to observe the re- 
quirements of this rule may be made, is the same as under Rule 22. 
The regular call of the docket is the call that is made of the cases 
thereon for trial and not a going through the entire docket at any one 
time for the purpose of informing the Court and Counsel as to the 
condition of pending cases or to arrange the business of the Court. 
The rules are intended to conform the practice in this Court to the 
practice in the Supreme Court as nearly as it may be, and we think 
that if a case is docketed in time, any subsequent neglect should not 
authorize the respondent to move for a dismissal prior to the actual 
call of the case for trial. 

This case has not been reached in the call of the docket, and in 
our opinion we cannot at this time entertain a motion to dismiss on 
such grounds as are alleged in this motion. 

C. H. Hanford, Judge. 

Thomas P. Hawley, Judge. 

Wm. W. Morrow, Judge. 



7/.. 



C 



TRANSCRIPT OF RECORD. 

UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE NINTH CIRCUIT. 
OGTOBRR TRRM, 1891. 



NO ., 



NORTHERN PACIFIC RAILROAD COMPANY, 

Plaintiff in Error, 

7'S. 

JUNIUS G. SANDERS, et a/., 

Defendants in Error. 



ERROR TO THE UNITED STATES CIRCUIT COURT, FOR THE DISTRICT 

OF MONTANA. 




7^ *^^^/ ^ e, /<=^/ 



UNITED STATES CIRCUIT COURT OF APPEALS 

FORTIIH iXINTII CIRCUIT. 
OUTOBblR TtsRM, 1S91. 



NO.Z 



/ 



NORTHERN PACIFIC RAILROAD COMPANY, 

Plaintiff in Error, 

vs. 

JUNIUS G. SANDERS ct a/.. 

Dcfoidants in Error. 



ERROR TO THE CIRCUIT COURT OF THE UNITED STATES, FOR THE 
DISTRICT OF MONTANA. 



INDEX. 



Original. Print. 

Citation , i i 

Return to citation 2 i 

Writ of error 3 1-2 

Answer of judges thereon 4 2-3 

Service of writ of error 6 3 

Caption 7 3 

Transcript from state court 7 3 

Complaint 7-10 3-6 

Answer 1 1 - 1 7 6-12 

Motion for transfer 18 12-13 

Order of transfer 19 13-14 

Clerk's certificate 20 14 

Appearance 21 14 

Amended complaint 21-24 15-18 

Rule to plead 25 18 

Answer to amended complaint 2 5-38 1 9-30 . 



INDEX 

Demurrer — to answer 38 30 

Demurrer set for hearinjj 39 30-31 

Hearing continued 39 31 

Demurrer submitted 43 31-32 

Order overruling demurrer 41 32 

Opinion on overruling demurrer 4 i^53 32-48 

Rule to plead .• 54 48-49 

Extension of tune to plead 54 49 

Motion for rehearing 5 5^57 49-51 

Order continuing hearing for the term . * 57 51-52 

Motion for rehearing set for hearing 58 52 

Motion allowed 5^-59 53 

Demurrer argued and overruled 59 53 

Judgment 59-60 53-54 

Order fixing amount of bond 60 54 

Assignment of errors 61-65 54~57 

Petition for writ of error 66-67 58 

Bond on writ of error 68-69 59-60 

Opinion on order overruling demurrer on rehearing. .70-89 60-74 

Clerk's certificate 90 74-75 



NORTHERN PACIFIC RAILROAD CO. VS. JUNIUS G. SANDERS, ET AL. I 

I United States of America, S. S. 

To Junius G. Sanders, Wilber E. Sanders, James U. Sanders and 

Serepta M. Sanders, and \V. F. Sanders and Adkinson & Miller, 

attorneys of record. 
Greeting: 

You are hereby cited and admonished to be and appear at the 
United States circuit court of appeals for the Ninth circuit, to be 
held at the city of San Francisco, in the state of California, thirty 
days from the date hereof, pursuant to a writ of error, filed in the 
clerk's office of the circuit court of the United States for the district 
of Montana, wherein Northern Pacific Railroad Company is plaintiff 
in error and you are defendants in error, to show cause, if any there 
be, why the judgment rendered against the said plaintiff in error as in 
the said writ of error mentioned, should not be corrected, and 
speedy justice not be done to the parties in that behalf. 

Witness the Honorable Melville W. Fuller, Chief Justice of the 
United States, this i8th day of August, A. D., 1891. 
[SEAL.] HIRAM KNOWLES, U. S. Dist. Judge. 

Service acknowledged August 20th, 1891. 

ADKINSON & MILLER, 
Attorneys for Defendants in Error. 

2 MarsJiaVs Return. 

I have served this writ personally on Adkinson & Miller, attor- 
neys of record, by delivering to them a copy of the same, and show- 
ing them the original thereof, at Helena, Lewis & Clark County, 
Montana, this 20th day of August, 1891. 

W. F. FURAY, U. S. Marshal. 
By W. F. PARKER, Deputy. 

3 United States of America, S. S. 

The President of the United States of America, to the Judges of 
the Circuit Court of the United States, for the District of Mon- 
tana : 



2 NORTHERN PACIFIC RAILROAD CO. VS. 

Greeting : 

Because in the record and proceedings, and also in the rendition 
of the judgment of a plea which is in the said circuit court, before 
you, between Northern Pacific Railroad Company, plaintiff, and 
Junius G. Sanders, Wilbur E. Sanders, James U. Sanders and 
Serepta M. Sanders, defendants, a manifest error hath happened, 
to the great damage of the said plaintiff, as by his complaint ap- 
pears, and it being fit that the error, if any there hath been, should 
be duly corrected, and full and speedj^ justice done to the parties 
aforesaid in this behalf, you are hereby commanded, if judgment be 
therein given, that then, under your seal, distinctly and openly, you 
send the record and proceedings aforesaid, with all things concern- 
ing the same, to the United States circuit court of appeals for the 
Ninth circuit together with this writ, so that you have the same at 
San Francisco, State of California, thirty days from the date of 
signing the citation to said defendants herein, to-wit: The seven- 
teenth da}' of September, A. D., 1891, in the said United States 
circuit court of appeals, to be there and then held, that the record 
and proceedings aforesaid, be inspected, the said United States 
circuit court of appeals may cause further to be done therein 
4 to correct that error, what of right and according to the law 

and custom of the United States should be done. 

Witness the Hon. Melville W. Fuller, Chief Justice of the Su- 
preme Court of the United States, this i8th day of August, in the 
year of our Lord one thousand eight hundred and ninety-one, and 
of the Independence of the United States the one hundred and si.x- 
teenth. 
[SEAL.] GEO. W. SPROULE, Clerk. 

The above writ of error is hereby allowed. 

HIRAM KNOWLES, U. S. Dist. Judge. 

The answer of the judges of the circuit court of the United 
States, for the Ninth judicial circuit, for the district of Montana. 

The record and all proceedings of the plaintiff wherein mention 
is within made with all things touching the same, we certify under 
the seal of our said court to the United States Circuit Court of Ap- 
peals for the Ninth circuit, within mentioned, at the day and place 



JUNIUS SANDERS, ET AL. 3 

within contained in a certain schedule to this writ annexed, as 
within we are commanded. 

By the Court, 
[SEAL.] GEO. W. SPROULE, Clerk. 

5 

6 No. 62. In the circuit court of the United States, Ninth 
circuit, district of Montana. N. P. R. R. Co., vs. J. G. 

Sanders, ct al, writ of error, filed Au^. 19. 1891. 

GEO. W. SPROULE, Clerk. 
Copy deposited for the defendants in errror in the clerk's ofBce 
circuit court of the United States for the district of Montana. 

7 Pleas in the circuit court of the United States for the 
Ninth circuit, district of Montana, held at the United States 

court room, in the city of Helena, in the district aforesaid, before 
the Hon. Hiram Knowles, United States district judge for the said 
district of Montana, on the 15th day of August, in the April term of 
said court, in the year of our Lord, one thousand eight hundred and 
ninety-one, and of our Independence the one hundred and fifteenth. 

GEORGE W. SPROULE, 
Clerk U. S. Circuit Court, 9th Circuit, District of Montana. 

Northern Pacific Railroad Company, Plaintiff, ^ 

vs. I 

Junius G. Sanders, Wilber E. Sanders, James U. Sanders [ 
AND Serepta M. Sanders, Defendants. J 

Be it remembered that on the 24th day of July, A. D., 1890, 
came the plaintiff by its attorneys, and filed in the office of the 
clerk of the circuit court of the United States, for the Ninth circuit, 
district of Montana, the files of the record in said cause, which was 
by order transferred from the district court of the First judicial 
district, of the county of Lewis and Clarke, state of Montana, and 
which said record and files are in the words and figures following, 
to-wit : 



4 NORTHERN PACIFIC RAILROAD CO. VS. 

Complaint. 

The Territory of Montana, \ 

V ss. 
County of Lewis and Clarke, ) 

In the district court, of the First judicial district, sitting; for the 
trial of causes arising under the constitution and laws of the United 
States. 



8 Northern Pacific Railroad Company, Plaintiff, 

Against 
Junius G. Sanders, Wilrer E. Sanders, James U. Sanders 
AND Sarepta M. Sanders, Defendants. 



L 



Now comes the Northern Pacific Railroad Company, plaintiff, 
and complains of the defendants, Junius G. Sanders, Wilbur E. 
Sanders, James U. Sanders, and Sarepta M. Sanders for that the 
said plaintiff is a corporation created by and existing under an act 
of the congress of the United States, entitled: "An Act granting 
lands to aid in the construction of a railroad and telegraph line 
from Lake Superior to Puget Sound on the Pacific Coast bj' the 
Northern route," approved July 2, 1864, and upon its information 
and belief it says, that by the terms of said act there was granted to 
said plaintiff by the congress every alternate section of public land 
not mineral, designated by odd numbers, to the amount of twenty 
alternate sections per mile on each side of the line as said plaintiff 
should adopt through the territories of the United States, and when- 
ever on the line thereof the United States have full title, not re- 
served, sold, granted, or otherwise appropriated, and free from pre- 
emption or other claims or rights at the time the line of said road 
is definitely fixed and a plat thereof filed in the office of the com- 
missioner of the general land office, and that the general route of 
the said road opposite to, perpendicular and by the premises here- 
inafter described, and the whole thereof was fixed and adopted by 
this plaintiff, within forty miles thereof, and a map and plat thereof 
filed in the office of the commissioner of the general land ofiice, on 
the 2 1st da}' of February, 1872, by means whereof the lands here- 



JUNIUS SANDERS, ET AL. 5 

after described were withdrawn from pre-emption entry or sale, ex- 
cept by this plaintiff. 

And thereafter, on the 6th day of July, 1882, the line of 
9 said railroad was definitely fixed by said plaintiff and a plat 

thereof filed in the oflce of the commissioner of the general 
land office, within forty miles, to-wit: two miles from the said prem- 
ises. And the said plaintiff further says on its information and be- 
lief that all the premises hereinafter described were at the time the 
line of said railroad was so definitely fixed and said plat thereof 
filed in the office of the commissioner of the general land office, per- 
pendicular to, opposite, and by said premises and the whole there- 
of, on an odd numbered section of public land not mineral, within 
forty miles, to-wit: within two miles of said definite fixed railroad 
line to which the United States then had full title, nor were they 
then reserved, sold, granted or otherwise appropriated, and they 
were then free from pre-emption and all other claims or rights, by 
means whereof plaintiff's said grant attached thereto and said prem- 
ises then became, have ever since remained, and now are the pro- 
perty of this plaintiff to which plaintiff is entitled without let or 
hindrance from the said defendants; and thereafter, on the 7th day 
of September, 1883, the plaintiff completed its railroad, opposite, 
perpendicular and by said section of land, and commissioners were 
appointed by the President for that purpose who examined said 
twenty-five miles of railroad and telegraph line, opposite and per- 
pendicular to which is the section of land aforesaid and said section 
of railroad was on the seventh day of, September, 1883, duly ap- 
proved by the President of the United States, whereby plaintiff be- 
came entitled to patents for said premises; but, so it is that hereto- 
fore, to-wit: on the lOth day of May, 1888, the plaintiff being pos- 
sessed thereof, the above named defendants wrongfully and unlaw- 
fully, without the consent of this plaintiff, entered thereon and ousted 
plaintiff therefrom and from that time hitherto hath remained and 
3'et are wrongfully and unlawfully in possession of section 2.1, 
township 10, N range 3 W, in the county of Lewis and Clarke, in 

the territory of Montana, to its damage in the sum of $100.00; 
lo_ Wherefore the plaintiff prays judgment for the restitution of 

the premises and for $100.00 and costs of suit. 

WADE. TOOL & WALLACE. 

Attorneys for plaintiff. 



6 northern pacific railroad co. vs. 

Territory of Montana, ) 

- ss 
County of Lewis and Clarke, j 

D. S. Wade, a witness of lawful age says, the plaintiff is a cor- 
poration, that affiant is the attorney thereof, that no other officer 
for plaintiff authorized by statute to verify pleadings thereof is 
within Montana, and that the facts set forth in the foregoing com- 
plaint are true to his best knowledge, information and belief and 
further saith not. 

D. S. WADE. 

Subscribed and sworn to before me this 27th day of July, 1889. 

W. E. CULLEN, Notary Public. 

[Endorsed.] In District Court, Eirst District of Montana, 
Lewis and Clarke Co. N. P. R. R. Co. Plaintiff, versus Junius G. 
Sanders, ct a./, Defendants. Complaint, Filed July 27th, W. F. 
Parker, elk. by J. A. Carter, deputy. Wade, Toole & Wallace, 
Attorneys for Plaintiff. No. 491. Also endorsed No. 62, In the 
Circuit Court of the United States, Ninth Circuit, District of Mon- 
tana. N. P. R. R. Co. vs. J. G. Sanders, ct a/. Filed Jul. 2, 1889, 
Geo. W. Sproule, Clerk. 

i I A tiswcr. 

Territory of Montana, | 

- ss 
County of Lewis and Clarke, \'^' 

In the District Court of the First Judicial District, Sitting for the 

Trial of Causes Arising Under the Constitution and Laws 

of the United States. 

Northern Pacific Railroad Company, Plaintiff, ^ 

Junius G. Sanders, Wilbur E. Sanders, James U. Sanders [ 
AND Sarepta M. Sanders, Defendants. j 

Come now the defendants Junius G. Sanders, Wilbur E. Sanders, 
James U. Sanders and Serepta M. Sanders, in the above entitled 
action, and as to the said complaint therein for the recovery of said 
land, admit, that it is and at all times heretofore was not mineral 
land, and by way of affirmative denials of the allegation that by 



JUNMUS SANDERS, ET AL. 7 

means of the filing of the map of the general route in the office of 
the commissioner of the General Land Office on the 2ist day of 
February, 1872, the said lands were withdrawn from pre-emption 
entr\' or sale except by the said plaintiff,and of the allegation that at 
the time the line of said railroad was definitely fixed, perpendicular 
to and opposite said premises, to-wit: July 6th, 1862, the United 
States had full title thereto and that they were not then sold, grant- 
ed or otherwise appropriated, and that they were then free from 
pre-emption and other claims or rights, and that the grant of con- 
gress by said act then attached thereto and said premises then be- 
came, have ever since remained, and now are the property of plaint- 
iff, to which plaintiff was or is entitled, and of the allegation that 
plaintiff by reason of the construction of the railroad opposite, per- 
pendicular to and b}' said premises, and the approval and 
12 acceptance of the President thereof, became entitled to a 

patent for said premises, and of the allegation that on the 
lOth day of ^Nlay, 1888, or at an}- other time, the plaintiff was pos- 
sessed thereof, and that the defendants wrongfully and unlawfully 
entered thereon and ousted plaintiff therefrom, and that they or 
either of them are or ever were wrongfully or unlawfully in posses- 
sion thereof, or has damaged plaintiff in any sum whatever, and as 
to the north-east quarter of said section 2 i say: that heretofore, to- 
wit, on the 2nd, day of August, 1880, Theodore H. Kleinschmidt, 
Edward W. Knight, Henry M. Parchen, Charles K. Wells, George 
P. Reeves, David H. Cuthbert, Cornelius Hedges and Stephen E. 
Atkinson, each being then and there a citizen of the United States, 
and each having theretofore filed upon a certain seperate twenty 
acres of the north-east quarter of said section according to the laws 
of the territory of Montana, and the mining usages and customs 
then in force in the office of the clerk and recorder, Lewis and 
Clarke county, Montana, and being then and in all respects qualifi- 
ed to enter mineral land under the laws of the United States, did 
enter into the possession of and file upon the said quarter of said 
section in the land office of the United States, in which district said 
land was situate as mineral land and apply for a patent therefor, 
and did then and in due form file on said premises and make said 
application, and did then and there make oath that they had disover- 



8 NORTHERN PACIFIC RAILROAD CO. VS. 

ed mineral thereon, and had located the eight several twenty acre 
tracts comprising said north-east quarter of said section as mineral 
land, and then and there undertook and offered to maintain that 
the said premises were valuable for the gold contained therein, 
and were mineral lands of the United States to which they were 
entitled under the laws thereof, and that they had done the requisite 
amount of work thereon and were entitled to a patent therefor, 
which said application was then and there entered of record in said 
United States Land Office by the register and receiver thereof, and 
the same was set for a hearing upon their said proofs to be intro- 
duced and notice of such hearing was given in the proper news- 
paper and was in all things formal and the said applica- 
13 tion was continued from time to time and remained, and 

was bv them asserted and pending on and after July 6th, 
1882, the dav when the line of said railroad at, opposite, perpen- 
dicular to and by said premises was definitely fixed, and the said 
applicants were then claiming, affirming and undertaking to main- 
tain that the same was mineral land of the United States, to which 
they were entitled and was not land in quality such as was de- 
scribed in the grant to said plaintiff. And as to the northwest 
quarter thereof and by way of affirmative denials of the foregoing 
allegations of the plaintiff's complaint, these defendants say that 
heretofore, to-wit. ; on the 12th day of August, A. D., 1880, George 
P. Reeves, Helen H. Reeves, Laura C. Ballon, John W. Eddy, 
Evelyn M. Eddy, Edward W. Knight, Theodosia M. Knight and 
Anna Natolia King, each being then and there a citizen of the 
United States, and each having theretofore filed upon a certain sep- 
arate twenty acres of the nortwest quarter of said section, according 
to the laws of the territory of Montana, and the mining usages and 
customs then in force, in the office of the clerk and recorder, L-ewis 
and Clark county, Montana, and being then and in all respects 
qualified to enter mineral land under the laws of the United States, 
did enter into the possession of and file upon the said quarter of 
said section in the land office of the United States, in which said 
district said land was situate as mineral land, and apply for a. 
patent therefor, and did then and in due form file on said premises 
and make such application, and did then and there make oath that 



JUNIUS SANDERS, ET AL. 9 

they had discovered mineral thereon, and had located the eight sev- 
eral twenty acre tracts comprising said northwest quarter of said 
section, as mineral land, and then and there undertook and offered 
to maintain that the said premises were valuable for the gold con- 
tained therein, and were mineral lands of the United States to 
which they were entitled under the laws thereof, and that they had 
done the requisite amount of work thereon and were entitled to a 
patent thererefor, which said application was then and there entered 
of record in said United States Land Office, by the register 
14 and receiver thereof, and the same was set for a hearing up- 

on their said proofs to be mtroduced, and notice of such 
hearing was given in the proper newspaper and was in all things 
formal and the said application was continued from time to time 
and remained and was by them asserted and pending on and after 
July 6th, 1882, the day when the line of said railroad at, opposite, 
perpendicular to and by said premises was definitely fixed and the 
said applicants were then claiming, affirming and undertaking to 
maintain that the same was mineral land of the United States to 
which thev were entitled and was not land in quality such as was 
described in the grant to said plaintiff. And as to the sonthwest 
quarter thereof, and by way of affirmative denials of the foregoing 
allegations of plaintiff's complaint these defendants say that hereto- 
fore, to-wit; on the 19th day of February, A. D., 1881, Theodore 
H. Kleinschmidt, Henry M. Parchen, David H. Cnthbert, Stephen 
E. Atkinson, Lucius I. Rosecrans, Emma M. Parchen, Mary M. 
Kleinschmidt and Annie E. Cuthbert, each being then and there a 
citizen of the United States, and each having theretofore filed uoon 
a certain separate twenty acres of the southwest quarter of said 
section, according to the laws of the territory of Montana, and the 
mining usages and customs then in force, in the office of the clerk 
and recorder, Lewis and Clarke count}', Montana, and being then 
and in all respects qualified to enter mineral land under the laws of 
the United States, did enter into the possession of and file upon the 
said quarter of said section in the land office of the United States 
in which district said land was situate as mineral land, and apply 
for a patent therefor, and did then and in due form file on said 
premises and make said application and did then and there make 



10 NORTHERN PACIFIC RAILROAD CO. VS. 

oath that they had discovered mineral thereon, and had located 
the eight several twenty acre tracts, comprising said southwest 
quarter of said section, as mineral land, and then and there 
undertook and offered to maintain that the said premises 
were valuable for the gold contained therein, and were mineral 
lands of the United States, to which they were entitled under the 
laws thereof, and that they had done the requisite amount 
1 5 of work thereon, and were entitled to a patent therefor, 

which said application was then and there entered of record in 
said United States land office by the register and receiver thereof, 
and the same was set for a hearing upon their said proofs to be in- 
troduced, and notice of such hearing was given in the proper news- 
paper, and was in all things formal, and the said application was 
continued from, time to time, and remained and was by them as- 
serted and pending on and after July 6th, 1882, the day when the 
line of said railroad at, opposite, perpendicular to, and by said 
premises, was definitely fixed, and the said applicants were then 
claiming, affirming and undertaking to maintain that the same was 
mineral land of the United States, to which they w^ere entitled, and 
was not land in quality such as was described in the grant to said 
plaintiff. 

And as to the southeast quarter thereof and by way of affirmative 
denials of the foregoing allegations of the plaintiff's complaint, these 
defendants say that heretofore, to-wit: on the 13th day of March, 
A. D., 1880, Cornelius Hedges, Thomas A. H. Hay, Marv L. 
Guthrie, Patrick Quinn, Louis A. Walker, William D. Wheeler, 
Edna L. Hedges, and George E. Carpenter, each being then and 
there a citizen of the United States, did each tile upon a certain 
separate twent}' acres of the southeast quarter of said section, ac- 
cording to the laws of the territory of Montana, and the mining 
usages and customs then in force, in the office of the clerk and re- 
corder of Lewis and Clarke county, Montana. 

That on the 21st day of October, i 8S0, Cornelius Hedges purchas- 
ed of Patrick Quinn all of his interest in said land and that on said 2 i st 
day of October, 1880, Russell B. Harrison purchased of Mary L. 
Guthrie, all of her interest in said land, and that on said 2ist dav 



JUNIUS SANDERS, ET AL. I I 

of October, Louis A. Walker purchased of George E. Carpenter, all 
of his interest in said land. 

And as to the said southeast quarter thereof, and by way of affir- 
mative denials of the foregoing allegations of the plaintiff's com- 
plaint, these defendants say, that heretofore to-wit: on the 
1 6 19th day of February, A. D., 1881, Cornelius Hedges, 

Thomas A. H, Hay, Russell B. Harrison, Louis A. Walker, 
William D. Wheeler, and Edna L. Hedges, each being then and 
there a citizen of the United States, and being then and in all re- 
spects qualified to enter mineral land under the laws of the United 
States, did enter into the possession of and file upon the said quar- 
ter of said section in the land office of the United States, in which 
district said land was situate as mineral land, and apply for a pat- 
ent therefor, and did then and in due form file on said premises and 
make said application, and did then and there make oath that they 
and their grantors had discovered mineral thereon and had located 
the eight seveial twenty acre tracts, comprising said southeast 
quarter of said section, as mineral land, and then and there under- 
took and offered to maintain that the said premises were valuable 
for the gold contained therein, and were mineral lands of the Unit- 
ed States, to which they were entitled under the laws thereof, and 
that they had done the requisite amount of work thereon, and were 
entitled to a patent therefor, which said application was then and 
there entered of record in said United States land office by the reg- 
ister and receiver thereof, and the same was set for a hearing upon 
their said proofs to be introduced, and notice of such hearing was 
given to the proper newspaper, and was in all things formal, and 
the said application was continued from time to time and remained 
and was by them asserted and pending on and after July 6th, 1882, 
the day when the line of said railroad a1, opposite, perpendicular to 
and by said premises, was definitely fixed, and the said applicants 
were then claiming, affirming and undertaking to maintain that the 
same was mineral land of the United States, to which they were 
entitled, and was not land in quality such as was described in the 
grant to said plaintiff. 

And defendants further say that said plaintiff never had any 
possession of said premises, unless it was that possession or livery 



12 NORTHERN PACIFIC RAILROAD CO. VS. 

of seizen, which accompanies a g^rant by the government nor 
17 does said plaintiff claim nor has it any title, claim or 

possession other than that conferred by the act of congress in 
said complaint recited. 

Wherefore defendants pray that, they may be dismissed without 
d^y and have judgment for their costs in this behalf expended. 

J. U. SANDERS, 
JOHN S. MILLER. 
Attorneys for Defendants. 

Territory of Montana, ) 

- ss 
County of Lewis and Clarke. \ 

Junius G. Sanders, a witness of lawful age, being first duly sworn, 
says: That he is one of the defendants in the above entitled action, 
that he has read the foregoing answer and knows the contents 
thereof, and that the same is true, except as to such facts stated on 
information and belief, and as to those he believes it to be true, 
and further saith not. 

JUNIUS G. SANDERS. 

Subscribed and sworn to before mc this 4th day of Sept. 1889. 

JAMES U. SANDERS, 
[Notarial Seal.] . Notary Public. 

[Endorsed:] 491, U. S. Dist. Court, 1st Judl. Dist. Mont. N. P. 
R. R. Co. 7'S. Junius G. Sanders, rt al. Answer. Filed Oct. 
7-'89, W. F. Parker, Clk. By J. A. Carter, Depty. [Also Endorsed.] 
No. 62. In the Circuit Court of the United States, Ninth Circuit, 
District of Montana, N. P. R. R. Co. vs. J. G Sanders ct al. 
Answer. Filed Jul. 24, 1890. Geo. W. Sproule, Clerk. 

18. Motion for Transfer. 

In the District Court of the first Judicial District, in and for the 
county of Lewis and Clarke, and State of Montana. 

The Northern Pacific Railroad Co. Plaintiff, 1 

Junius G. Sanders, ct al.. Defendants. \ 

Now comes the plaintiff in the above entitled action by its attorneys, 
Toole and Wallace, and moves, petitions and requests the court to 



JUNIUS G. SANDERS, ET AL. I 3 

transfer the said cause to the United States circuit court in and for 
the circuit of Montana. 

Said appHcation is made upon the ground, that it is a cause 
arising under the laws of the United States involving for the tlie 
plaintiff's rights a question of the construction of those laws, and of 
which the said circuit court, if established at the time of the com- 
mencement of the said action, would have had jurisdiction. 

Said motion is based upon the complaint and answer in said 
cause. TOOLE & WALLACE, 

Attorneys for Plaintiffs. 

[Endorsed:] 491. — U. S. Dist. Court, First Dist. Mont. N. P. 
R. R. Co. vs. Junius G. Sanders, et al. Motion for transfer. Filed 
May 29, 1890, John Bean, Clerk. By H. J. Cassidy, Dept. Toole 
& Wallace, Att'ys for Plf?. [ Also endorsed ] No. 62. In the 
Circuit Court of the United States, Ninth Circuit, District of 
Montana. N. P. R. R. Co. vs. J. G. Sanders et al. Motion. 
Filed July 24th, 1890, Geo. W. Sproule, Clerk. 

19 Order of Transfer. 

In the District Court, of the First Judicial District of the State 
of Montana, in and for the County of Lewis and Clarke. 

Done in open Court this 3rd day of June, A. D., 1890. 
Northern Pacific R. R. Co. 

7'S. 

Junius G. Sanders, No. 491. 

On petition of plaintif?, court ordered this cause transferred to 
United States circuit court. 

(Signed.) THOS. J. GALBRAITH, 

Judge Presiding. 

I hereby certify the foregoing to be a full, true and correct copy 
of the order to transfer this cause to the United States circuit 
court. 

In witness whereof I hereunto set my hand and affix the seal of 
this court. JOHN BEAN, Clerk, 

[seal] By H. R. Thompson, Deputy Clerk. 



14 NORTHERN PACIFIC RAILROAD CO. VS. 

[Endorsed.] No. 62. In the Circuit Court of the United States, 
Ninth Circuit District of Montana. N. P. R. R. Co. vs. J. G. 
Sanders ct al. Order to transfer. Filed Jul. 24, 1890. Geo. W. 
Sproule, Clerk. 

20 Clerk' s Certificate. 

In the District Court of the First Judicial District of the State of 
Montana, in and for the County of Lewis and Clarke. 

Northern Pacific Railroad Company, Plaintiff. 

vs. 
Junius G. Sanders, Wilbur E. Sanders, James U. Sanders. 
and Serepta M. Sanders, Defendants. j 

I — Complaint. 

2 — Answer. 

3 — Motion for Transfer. 

4 — Order to Transfer. 

I hereby certify that the above enumerated papers and pleadings 
are all the papers and pleadings filed in the above entitled cause 
in this office. H. R. THOMPSON, 

Deputy Clerk of the First Judicial District of the State of 
Montana, in and for the County of Lewis and Clark. 

[Endorsed.] No. 62. In the Circuit Court of the United States, 
Ninth Circuit, District of Montana. N. P. R. R. Co. vs. J. G. 
Sanders, et al. Clerk's Certificate. Filed July 24, 1890, Geo. W. 
Sproule, Clerk. 

21 And thereafter on said 24th day of July, A. D., 1890, saitl 
above entitled cause was duly docketed in the said circuit 

court of the United States, for the district of Montana, F. M. 
Dudley, appearing as attorney for plaintiff, and Messrs. Sanders, 
Adkinson and Miller, for the defendants. 

And thereafter, to- wit: on the 6th day of November, A. D., 1890, 
plaintiff filed its amended complaint herein, which said amended 
complaint is in the words and figures following, to-wit: 



JUNIUS G. SANDERS, ET AL. I 5 

United States Circuit Court, District of Montana. 
Northern Pacific Railroad Company, Plaintiff, 

7'S. 

Junius G. Sanders, Wilbur E. ^Sanders, James U. Sanders 
and Serepta M. Sanders, Defendants. 

22 Now comes said plaintiff, and for cause of action against 

said defendant, complains and alleges: 

I. 

That said plaintiff is a corporation, created by, and organized 
and existing under, an act of congress of the United States, approv- 
ed July 2, 1864, entitled "An act granting lands to aid in the con- 
struction of a railroad and telegraph line from Lake Superior to 
Puget Sound, on the Pacific Coast, by the northern route," and 
those certain acts and joint resolutions supplemental thereto and 
amendatory thereof. 

11. 

That by the terms of said act of congress, approved July 2, 1864, 
plaintiff was authorized and empowered to lay out, locate, con- 
struct, furnish, maintain and enjoy a continuous railroad and tele- 
graph line, with the appurtenances, namely; Beginning at a point 
on Lake Superior, in the state of Minnesota or Wisconsin, thence 
westerly by the most eligible railroad route, as should be determined 
by plaintiff, within the territory of the United States, on a line 
north of the 45th degree of latitude to some point on Puget Sound. 
And there was granted to plaintiff by the congress of the United 
States of America every alternate section of public land, not miner- 
al, designated by odd numbers, to the amount of twenty alternate 
section per mile on each side of said railroad line, as plaintiff might 
adopt, through the territories of the United States, and ten alter- 
nate sections of land per mile on each side of said railroad whenever 
it passed through any state, and whenever on the line thereof the 
United States had full title, not reserved, sold, granted or otherwise 
appropriated, and free from pre-emption or other claims or rights at 
the time the line of said road should be definitely fi.xed and a plat 
thereof filed in the office of the commissioner of the General Land 
Office. 



1 6 NORTHERN PACIFIC RAILROAD CO. VS. 

III. 

That it was provided, in and by section six of the said act, that 
the president of the United States should cause the lands to be sur- 
veyed for forty miles in width on both sides of the entire line of 
said road, after the general route thereof was fixed, and as fast as 
should be required by the construction of said railroad; and that 
the odd sections of land thereby granted should not be liable to 
sale or entry or pre-emption, before or after they were surveyed, 
except by plaintiff, as provided in said act. 

IV. 

That plaintiff duly accepted the terms, conditions and impositions 
of said act, and signified such acceptance in writing, under its cor- 
porate seal, executed pursuant to the direction of its board of direct- 
ors first had and obtained, and within two years after the passage of 
said act, to-wit: December, 29, 1864, served such acceptance on 
the president of the United States. 

V. 

That the general route of said railroad, extending through 
the state of Montana, was duly fixed February 21, 1872, 
and that the following described land, to-wit: section 21, in 
township ID north of range 3 west, P. M. Montana. 
23 was on and within forty miles of the general routeof said rail- 

road so fixed as aforesaid; and that said land was, on said Feb- 
ruary 21, 1872, public land to which the United States, had full title, 
not reserved, sold, granted or otherwise appropriated, and free from 
pre-emption or other claims or rights. 

VI. 
That at the date of the passage of said act, July 2, 1864, and at 
the date of fixing said line of general route of said railroad, to-wit, 
February 21, 1872, no part of the said section 21, township 10, 
north range 3 west, was known mineral land, and that in truth and 
in fact said land was not mineral land, nor was any part of said last 
described land with any exceptions from said grant. 

VII. 
That thereafter, to-wit. July 6th, 1882, plaintiff definitely fixed 



JUNIUS G. SANDERS, ET AL. I 7 

the line of its said railroad, extending opposite to and past said sec- 
tion 2 1, township lo north range 3 west, and filed a plat thereof 
in the office of the commissioner of the General Land Office. That 
said land is on and within forty miles of said line of railroad, so defi- 
nitely fixed as aforesaid. 

VIII. 

That thereafter plaintiff duly constructed and completed that por- 
tion of said railroad and telegraph line extending on, over and along 
the line of definite location of said railroad so fixed as aforesaid; 
and thereupon the president of the United States appointed three 
commissioners to examine the same; and it appearing to the said 
commissioners that that portion of said railroad and telegraph line 
had been completed in a good, substantial and workmanlike man- 
ner, as in all respects required by said act of July 2, 1864, and the 
acts supplementary thereto and amendatory thereof, the said com- 
missioners so reported to the president of the United States and 
said president of the United States duly accepted said line of rail- 
road and telegraph so constructed and completed as aforesaid. 

IX. 

That at the date of so definitely locating said line of railroad, and 
of the filing of a plat thereof in the office of the commissioner of the 
General Land Office, to-wit, July 6th, 1S82, the said section 21, 
township 10, north range 3 west, was not known to be mineral 
land, and was, in fact and in truth, agricultural land. 

That said land was on said day public land to which the United 
States had full title, not reserved, sold, granted or other- 
24 wise appropriated and free from pre-emption or other claims 

or rights. 

X. 

That heretofore to-wit: on the lOth day of May, 1888, plaintiff, 
being seized of said premises, the above named defendants wrong- 
fully and unlawfully, without the consent of this plaintiff, entered 
thereon and ousted plaintiff therefrom, and from that time hither- 
to hath remained, and yet are, wrongfully and unlawfully in pos- 
session of said section 21, township 10, north of range 3 west, in 



1 8 NORTHERN PACIFIC RAILROAD CO. VS. 

the county of Lewis & Clarke, in the State of Montana, to plaintiff's 
damage in the sum of one hundred dollars. 

That the value of the said land is over ten thousand dollars. 
Wherefore the plaintiff prays judgment for the restitution of the 
premises and for one hundred dollars and costs of suit. 

F. M. DUDLEY, 

Attorney for Plaintiff. 

State of Minnesota, ^ 

[^ss. 
County of Ramsey. J 

F. M. Dudley, being first duly sworn, doth depose and say: That 
the plaintifl is a corporation, and that affiant is an officer thereof, 
to-wit: its general land attorney; that the facts set forth in the fore- 
going complaint are true to his best knowledge, information and be- 
lief. F. M. DUDLEY. 

Subscribed and sworn to before me this i 5th day of October, A. 
D., 1890. JOHN L. MOON. 

[seal.] Notary Public, Ramsey County, Minnesota. 

[Endorsed.] No. 62. In the circuit court of the United States, 
Ninth Circuit, District of Montana. N. P. R. R. Co. 7'i. J. G. 
Sanders, I't a/. Amended complaint. Filed Nov. 6th, 1890. Geo. 

W. Sproule, Clerk. 
25 And thereafter the following further proceedings were had 

and entered of record herein, in the words and figures fol- 
lowing, to-wit: 

In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 

Fifth day. November Term, A. D., i<S9o; Tuesday. November 
I ith, 1890. 10 A. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States I')istrict 
Judge, for the District of Montana. 



JUNIUS G. SANDERS, ET AL. IQ 

No. 62 — Northern Pacific R. R. Co. \ 

7'S. V 

J. G. Sanders, ct a/, ) 

Defendants ask leave to file answer to amended complaint. 
Motion granted. 

And thereafter on said i ith day of November, A. D., 1890, 
defendants filed their answer to plaintiff's amended complaint, which 
said answer is in the words and figures following, to- wit: 

In the Circuit Court of the United States, for the Ninth Circuit, 
District' of Montana. 

Removed from Territorial Court. 

Northern Pacific Railroad Company, Plaintiff, 

7'S. 

Junius G. Sanders, Wilbur E. Sanders, James U. Sanders 
and Sarepta M. Sanders, Defendants. 

Answc?- to Amended Complaint. 

Now come the defendants, Junius G.Sanders, Wilbur E. Sanders, 
James U. Sanders and Sarepta M. Sanders, in the above en- 
26 titled action, and as to the said amended complaint for the 

recovery of the land described therein, to-wit: 

Section 21, in township 10, north of range 3 west of the principal 
meridian of the state of Montana, by way of affirmative denial of 
the allegations that the premises described in said amended com- 
plaint were not within any exception from said grant and of the 
allegation that said land was on the day of the date of the definite 
location of the line of plaintiff's said railroad perpendicular to, oppo- 
site and by said premises and the filing of a map thereof in the 
office of the commissioner of the General Land Office, to-wit: July 
6, 1882, public land to which the United States had full title not 
reserved, sold, granted or otherwise appropriated, and was then 
free from pre-emption or other claims or rights, and the allegation 
that on the loth day of May, 1888, the said plaintiff was seized of 
said premises and of the allegation that the entry on and withhold- 
ing thereof by these defendants or any of them was wrongful or 
unlawful and of the allegation that thereby the plaintiff was dam- 



20 NORTHERN PACIFIC RAILROAD CO. VS. 

aged in any sum whatever, confessing that said premises did not 
contain gold or other precious metals in paying 
quantities or in such quantity as to make the same, 
or any thereof, commercially valuable therefor, neverthe- 
less say: as to the north-east quarter of said section 21, that here- 
tofore to-wit: on the second day of August, 1880, Theodore H. 
Kleinschmidt, Edward W. Knight, Henry M. Parchen, Charles K. 
Wells, George P. Reeves, David H. Cuthbert, Cornelius Hedges, 
and Stephen E. Atkinson, each being then and there a citizen of 
the United States, and each having theretofore filed upon a certain 
seperate twenty acres on the north-east quarter of said section 
according to the laws of the territory of Montana, and the mining 
usages and customs then in force in the un-organized mining 
district in which said land was situated, and being in all 

respects qualified to enter mineral land under the 
27 laws of the United States, did enter into the possession of, and 

did enter in the United States land office, and did file upon the 
said quarter of said section in the land office of the United States 
at Helena, Montana, in which district said land was situate, as 
mineral land, and did apply for a patent therefor and did then and 
there, and in due form file an application to fiurchase said premises 
as such mineral land, and did then and there make oath before the 
register and receiver of said land office that they had discovered 
mineral thereon and had located the said quarter section as mineral 
land and claimed the same as such for the valuable mineral deposits 
therein, and that they had complied with chapter 6 of title XXXH 
of the revised statutes of the United States, which said application 
was so filed in the land office at Helena Montana, under the oath 
of the said applicants, showing that they had complied with the law 
aforesaid and describing the same by legal sub-divisions and they 
did then and there prior to filing said application post in a conspicu- 
ous place, on the claim embraced therein, a copy of said application 
and notice hereinafter mentioned, which said notice did then and 
there remain conspicuously posted on said premises during the period 
of publication hereafter mentioned, and they did then and there file 
with their said application in said land office, an affidavit of two 
persons that such notice had been so duly posted and did then and 



JUNIUS G. SANDERS, ET AL. 21 

there file a copy of said notice in the land office with the register 
and receiver thereof, and by said application they requested to be 
permitted to purchase the same as mineral land, and they then and 
there undertook and offered to maintain by proof that the said 
premises were valuable for the gold contained therein and were 
mineral lands of the United States, to which they were entitled 
under the laws thereof, and that they had done the requisite 
amount of work thereon, to-wit: work of the value of five hundred 
dollars, and were entitled to a patent therefor, which said applica- 
tion and affidavit and notice were then and there entered of 
2(S record in said United States land office by the register and 

receiver thereof, and the said application was set for a hearing 
upon their said proofs to be produced and notice of such hearing in due 
form of law was given by the register and receiver in the proper 
newspaper designated for that purpose, and was duly published there- 
in, which said entry, application, affidavits and notice were in all re- 
spects formal according to law and the said application was set 
down for a hearing in said land office by the register and receiver 
thereof at the expiration of the period of time prescribed in said no- 
tice and at the date at which the same was so set, the said plaintiff 
having theretofore filed a protest against the perfection of the said 
entry, for the reason, as claimed by said plaintiff, that the same was 
not mineral land or commercially valuable for the gold or other pre- 
cious metals therein contained, the said application was continued 
thereafter by the consent of parties or otherwise, frorn time to time, 
and was asserted and remained pending on the 6th day of July, 1882, 
and thereafter the said applicants on said 6th day of July, 1882, 
and thereafter as theretofore, averring their ability to prove that the 
said land was commercially valuable for the gold therein contained, 
and was mineral land within the definition of that phrase contained 
in the act granting lands to said plaintiff mentioned in said amend- 
ed complaint, and the said applicants were on the date last afore- 
said claiming, affirming and undertaking to maintain on their ap- 
plication for said premises in said land office, that the same was min- 
eral land of the United States, to which they were entitled there- 
under, and was not land in quality such as was described in the grant 
to the said plaintiff. 



22 NORTHERN PACIFIC RAILROAD CO. VS. 

And as to the northwest quarter of said section and by way of af- 
firmative denials of the foregoing allegations of the plaintiff's amend- 
ed complaint, these defendants say that heretofore, to-wit: on the 
1 2th da)' of August, A. D. 1880, George P. Reeves, Helen H. Reeves, 
Laura C. Ballou, John W. Eddy, Evelyn M.Eddy, Edward W. 
29 Knight, Theodosia M. Knight and Anna Natolia King, each being 

then and there a citizen of the United States, and each having 
theretofore filed upon a certain separate twenty acres on the north- 
west quarter of said section according to the laws of the territory of 
Montana, and the mining usages and customs then in force in the 
unorganized mining district in which said land was situated, and be- 
ing then in all respects qualified to enter mineral land under the laws 
of the United States, did enter into the possession of and did enter 
in the United States land office and did file upon the said quarter 
of said section in the land office of the United States at Helena, Mon- 
tana, in which district said land was situate, as mineral land, and 
did apply for a patent therefor, and did then and there and in due 
form file an application to purchase said premises as such mineral 
land, and did then and there make oath before the register and re- 
ceiver of said land office, that they had discovered mineral thereon 
and had located the said quarter section as mineral land and claimed 
the same as such for the valuable mineral deposits therein, and that 
they had complied with chapter b of title XXXH of the Revised 
Statutes of the United States, which said application was so filed 
in the land office at Helena, Montana, under the oath of the said 
applicants showing that they had complied with the law aforesaid 
and describing the same by legal sub-divisions, and that they did 
then and there prior to filing said application post in a conspicuous 
place on the claim embraced therein a copy of said application and 
notice hereinafter mentioned, which said notice did there remain 
conspicuously posted on said premises during the period of publica- 
tion hereafter mentioned, and they did then and there file with their 
said application in said land office, an affidavit of two persons that 
such notice had been so duly posted and did then and there file a 
copy of said notice in the land office with the register and receiver 
thereof, and by said application thej' requested to be permit- 
ted to purchase the same as mineral land and they then 



JUNIUS G. SANDERS. ET AL. 23 

30 and there undertook and offered to maintain by proof that 
the said premises were valuable for the gold contained there- 
in and were mineral lands of the United States to which they were 
entitled under the laws thereof, and that they had done the requi- 
site amount of work thereon, to-wit: work of the value of five hun- 
dred dollars, and were entitled to a patent therefor, and which said 
application and affidavit and notice were then and there entered of 
record in the said United States land office by the register and re- 
ceiver thereof, and the said application was set for a hearing upon 
their said proofs to be produced and notice of such hearing in due 
form of law was given by the register and receiver in the proper 
newspaper designated for that purpose, and was duly published 
therein, which said entry, application, affidavits and and notice 
were in all respects formal according to law, and the said applica- 
tion was set down for a hearing in said land office by the register 
and receiver thereof, at the expiration of the period of time pre- 
scribed in said notice, and at the date at which the same was so set 
the said plaintiff having theretofore 'filed a protest against the per- 
fection of the said entry for the reason, as claimed by said plaintiff, 
that the same was not mineral land or commercially valuable for 
the gold or other metals therein contained, the said application was 
continued thereafter by consent of parties or otherwise, from time 
to time, and was asserted and remained pending on the 6th day of 
July, 1882, and thereafter, the said applicants on the said 6th day 
of July, 1882, and thereafter as theretofore avering their ability to 
prove that the said land was commercially valuable for the gold 
therein contained and was mineral land within the definition of that 
phrase contained in the act granting lands to said plaintiff mentioned 
in said amended complaint, and the said applicants were on the date 
last aforesaid claiming, affirming and undertaking to maintain on 
their application for said premises in said land office that the same was 
mineral land of the United States to which they were entitled there- 
under and was not land in quality such as was described in the 

3 1 grant to the said plaintiff. 

And as to the southwest quarter of said section and by 
way of affirmative denials of the foregoing allegations of the plain- 
tiff's amended complaint these defendants say that heretofore, to- 



24 NORTHERN PACIFIC RAILROAD CO. VS. 

wit: on the 19th day of February, A. D. 1881, Theodore H. Klein- 
schmidt, Henry M. Parchen, David H. Cuthbert, Stephen E. Atkin- 
son, Lucius I. Rosecrans, Emma M. Parchen, Mary M. Klein- 
schmidt and Annie E. Cuthbert, each being then and there a citi- 
zen of the United States, and each having theretofore filed upon a 
separate twenty acres on the southwest quarter of said section ac- 
cording to the laws of the territory of Montana, and the mining 
usages and customs then in force in the unorganized mining dis- 
trict in which said land was situated, and being then in all respects 
qualified to enter mineral land under the laws of the United States, 
did enter into the possession of and did enter in the United States 
land office, and did file upon the said quarter of said section in the 
land office of the United States at Helena, Montana, in which dis- 
trict said land was situate, as mineral land, and did apply for a 
patent therefor, and did then and there, and in due form, file an 
application to purchase said premises as such mineral land, and did 
then and there make oath before the register and the receiver of 
said land office that they had discovered mineral thereon and had 
located the said quarter section as mineral land and claimed the 
same as such for tlic the valuable mineral deposits therein, and that 
they had complied with chapter 6 of title XXXH, of the revised 
statutes of the United States, which said application was so filed in 
the land office at Helena, Montana, under the oath of the said ap- 
plicants showing that they had complied with the law aforesaid and 
describing the same by legal subdivisions and they did then and 
there prior to filing said application post in a conspicuous place on 
the claim embraced therein a copy of said application and notice 
hereinafter mentioned, which said notice did there remain conspicu- 
ously posted on said premises during the period of publication here- 
after mentioned, and they did then and there file with their 
32 said application in said land office, an affidavit of two per- 

sons that such notice had been so duly posted and did then 
and there file a copy of said notice in the land office with the regis- 
ter and receiver thereof, and by said application they requested to 
be permitted to purchase the same as mineral land and they then 
and there undertook and offered to maintain by proof that the said 
premises were valuable for the gold contained therein and were 



JUNIUS G. SANDERS, ET AL. 25 

mineral lands of the United States to which they were entitled un- 
der the laws thereof, and that they had done the requisite amount 
of work thereon, to-wit: work of the value of five hundred dollars, 
and were entitled to a patent therefor, which said application and 
affidavit and notice were then and there entered of record in the 
said United States land office by the register and receiver thereof, 
and the said application was set for a hearing upon their said proofs 
to be produced and notice of such hearing in due form of law was 
given by the register and receiver in the proper newspaper designa- 
ted for that purpose and was duly published therein, which said 
entry, application, affidavits and notice were in all respects formal 
according to law and the said application was set down for a hear- 
ing in said land office by the register and receiver thereof at the 
expiration of the period of time prescribed in said notice and at 
the date at which the same was so set the said plaintiff having 
theretofore filed a protest against the perfection of the said entry, 
for the reason, as claimed by said plaintiff that the same was not 
mineral land or commercially valuable for the gold or other metals 
therein contained, the said application was continued thereafter by 
consent of parties or otherwise from time to time and was assert- 
ed and remained pending on the 6th day of July, [882, and there- 
after the said applicants on the said 6th day of July, 1882, and 
thereafter as theretofore averring their ability to prove that the said 
land was commercially valuable for the gold therein contained and 

was mineral land within the definition of that phrase con- 
33 tained in the act granting lands to said plaintiff mentioned 

in said amended complaint, and the said applicants were on 
the date last aforesaid, claiming, affirming and undertaking to main- 
tain on their application for said premises in said land office that 
the same was mineral land of the United States to which they were 
entitled thereunder and was not land in qualit\' such as was de- 
scribed in the grant to the said plaintiff. 

And as to the southeast quarter of said section, and by way of 
affirmative denials of the foregoing allegations of the plaintiff's 
amended complaint, these defendants say that heretofore, to-wit: 
on the 13th day of March, 1880, Cornelius Hedges, Thomas A. H. 
Hay, Mary L. Guthrie, Patrick Quinn, Louis A. Walker, William 



28 NORTHERN PACIFIC RAILROAD CO. VS. 

for said premises in said land office that the same was mineral 
land of the United States to which they were entitled thereunder 
and was not land in quality such as was described in the grant to 
the said plaintiff. 

And defendants further say that said plaintiff never had any pos- 
session of said premises, unless it was that possession or livery of 
seizen which accompanies a grant by the government, nor does said 
plaintiff claim nor has it any title claim or possession other than 
that conferred by the act of congress in said complaint recited. 

And as to the said proceedings, and each and all of them, in the 
office of the county clerk and recorder of said county of Lewis 
and Clarke, Montana, in which county said premises are 
36 situate and in the United States land office at Helena, afore- 
said, they were in the form prescribed by law for the claim and 
entry of placer mining claims, and thereafter, to-wit: on the 4th day 
of August, 1887, the said plaintiff presented to the said register and 
receiver a list of lands selected by it as having been granted to it 
by the act aforementioned and claimed by it thereunder, to be ap- 
proved to the end that the said premises in said list described might 
certified to it for patent, which list included said section twenty- 
one, but to approve said list or certify said lands to said company 
the said register and receiver and the land department of the Unit- 
ed States refused because of the existence on the 6th day of July. 
1882, of the foregoing claims to the same as mineral lands. On 
the 2 1st day of February, 1872, said plaintiff filed a map of the 
general route of its said road in the office of the commissioner of 
the general land office. 

That thereafter the commissioner of the general land office, un- 
der the directions of the secretary of the interior, duly prepared a 
plat showing that portion of the preliminary or general route of the 
said Northern Pacific Railroad extending through the United States 
land district of Helena, Montana, and designated thereon lines 
showing the limits of the land grant to the said plaintiff, for forty 
miles in width on each side of said line of general route, thereafter 
to-wit, April 22, 1872, the said commissioner of the general land 
office, under the directions of the secretary of the interior, duly 
transmitted said diagram to ihe register and receiver of the United 



JUNIUS G. SANDERS, ET AL. 29 

States district land office at Helena, Montana, with the following 
letter of instructions. 

" Department of the Interior, \ 

General Land Office, l 

April 22, 1872. ' 

" Register and Receiver, Helena, Mont. — Gentlemen: 
37 I transmit herewith diagram showing the designated route of 

the Northern Pacific Railroad under the act of July 2, 1864, 
and, by direction of the secretary of the interior, you are hereby direct- 
ed to withdraw from sale or location, pre-emption or homestead entry, 
all the surveyed and unsurveyed odd numbered sections of public 
lands falling within the limits of 40 miles as designated on this 
map. You will also increase in price to $2.50 per acre the even 
numbered sections within these limits, and dispose of them at that 
ratability, and under the pre-emption laws only. No private entry 
of the same being admissable until these lands have been offered at 
the increased price. This order will take effect from the date of its 
receipt by you; and you are requested to acknowledge without de- 
la}', the time of its receipt. 

Very respectfully, 
(Signed) WILLIS DRUMMOND, 

Commissioner." 
That the said letter of instructions and diagram were received at 
the United States district land office at Helena, Montana, May 6, 
1872. 

Wherefore defendants pray judgment for their costs. 

ADKINSON & MILLER, 

for defts. 
State of Montana, 
County of Lewis and Clarke. 

James U. Sanders, a witness of lawful age, being first duly sworn, 
says: That he is one of the defendants in the above entitled ac- 
tion, that he has read the foregoing answer and knows the contents 
thereof, and that the same is true, except as to such facts stated on 
information and belief, and as to those he believes it to be true, and 
further saith not. 

JAMES U. SANDERS. 



30 NORTHERN PACIFIC RAILROAD CO. VS. 

38 Subscribed and sworn to before me this i ith day of Nov- 
ember, r890. 

GEORGE W. SPROULE, 
Clerk U. S. Circuit Court, 9th Circuit, District of Mont. 
[Endorsed.] No. 62. In the Circuit Court of the United States, 
Ninth Circuit, District of Montana. N. P. R. R. Co. 7's. J. G. 
Sanders ^^ rt/. Answer to Amended Complaint. Filed Nov. iith 
1890. Geo. W. Sproule, Clerk. 

And thereafter on the 12th day of November A. D., 1890, plaint- 
iff filed its demurrer to said answer to said amended complaint, 
which said demurrer is in the words and figures following to- wit: 

United States Circuit Court, District of Montana. 

The Northern Pacific R. R. Co. Plaintiff. ) 

vs. I 

Junius G. Sanders, et a/.. Defendants. ) 

Dojit/rrcr. 

Now comes the plaintiff by his attorney and demurs to the answer 
to the amended complaint herein for the reason that said answer 
does not state facts sufficient to constitute a defence or counter 
claim. F. M. DUDLEY. 

Attorney for Plaintiff. 
[Endorsed.] No. 62. In United States Circuit Court, Ninth 
Circuit. District of Montana. N. P. R. R. Co. 7's. J. G. Sanders. 
Demurrer. Filed Nov. 12th, 1890. Geo. W. Sproule, clerk. F. M. 
Dudley, Attorney for Plaintiff. 

39 And thereafter on the 20th day of November, A. D., 1890, 
the following further proceedings were had and entered of re- 
cord in the words and figures following, to-wit: 

In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 

Thirteenth day of November term A. D., 1890; Thursday 
November 20th, 10 A. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District 
Judge, for the District of Montana. 



JUNIUS G. SANDERS, ET AL. 3I 

No. 62. Northern Pacific R. R. Co. vs. J. G. Sanders, et al. 
Demurrer to the answer in this cause is set for hearing Nov. 21, 
1890, at 10 A. M. 

And thereafter on the 22nd day of November, A. D., 1890, the 
following further proceedings were had and entered of record in the 
above entitled cause to-wit: 

In the United States Circuit Court, Ninth Circuit, for the District 

of Montana. 

Fifteenth day, November term, A. D., 1890; Saturday, November 
22nd, 10 A. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District Judge, 
for District of Montana. 

No. 62. — Northern Pacific R. R. Co. a 

vs. \ 

J. G. Sanders, ct al. \ 

This cause came on for hearing this day on the demurrer to 
answer of defendants, and after argument by F. M. Dudley for 
plff. , and W. F. Sanders for defts. , the further hearing was con- 
tinued until Monday Nov. 24th, 1890. 
40 And thereafter on the 25th day of November, A. D., 1890, 

the following further proceedings were had and entered of re- 
cord in said cause in the words and figures following, to-wit: 

In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 

Seventeenth day November term A. D., 1890, Tuesday 
November 25th, 1890, 10 A. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District 
Judge, for the District of Montana. 

No. 62 — Northern Pacific Railroad Co. ] 

vs. K 

J. G. Sanders, et al. ) 

The further argument of the demurrer in this cause was proceed- 
ed with, and submitted to the court for consideration and decision. 



32 NORTHERN PACIFIC RAILROAD CO. VS. 

And thereafter on the 6th day of April A. D. , 1891, the following 
further proceedings were had and entered of record in said cause in 
the words and fig'ures following to-wit: 

In the Circuit Court of the United States, Ninth Circuit, District of 

Montana. 

First day, April Term, A. D., 1891. 

At a stated term to-wit: the April term, A. D., 1891, of the cir- 
cuit court of the United States of America, of the Ninth judicial 
circuit, in and for the district of Montana, held at the city of 
Helena, in said district, at the court room of said court, on Mon- 
day the 6th day of April, A. D., 1891. 

Present: The Honorable Hiram Knowles, United States District 
Judge, for the District of Montana. Elbert D. Weed, Esq., United 
States Attorney, Wm. F. Furay, United States Marshal, Geo. W. 
Sproule, Clerk. 

41 No. 62 — Northern Pacific Railroad Company, \ 

7'S. V 

J. G. Sanders, rt a/. ) 

This cause heretofore submitted to the court for consideration 
and decision on the demurrer to the answer, came on this day for 
the decision and judgment of the court. 

Whereupon after due consideration it is ordered that said de- 
murrer to the answer be and the same is hereby overruled. 

And thereafter and on said day to-wit: April 6th, 1 891, the opinion 
of the court in said cause overruling said demurrer was tiled, which 
said opinion is in the words and figures following to-wit: 

Opiniofi. 

In the United States Circuit Court, District of Montana. 

Northern PaciFic Railroad Company, \ 

vs. \ 

J. G. Sanders, ct al. 1 

Knowles, J. The complaint in this case • sets 
forth a cause of action in the nature of ejectmeni 



JUNIUS G. SANDERS, ET AL. 33 

to recover the possession of section 21, in 
42 township 10 north, range 3 west, in Lewis and Clarke county, 

Mont. In it enough is set forth to show that plaintiff receiv- 
ed from the United States a grant of 20 alternate sections of land 
per mile on each side of its road in Montana as definitely fixed. 
This land was to be such as at the time plaintiff's road should be 
definitely fixed and a plat thereof filed in the office of the com- 
missioner of the general land office the United States had full title 
to, and which was not reserved, sold, granted, or otherwise appro- 
priated, and was free from pre-emption or other claims or rights. 
It is set forth that the land is non-mineral, and an alternate section 
within the limits of said grant agricultural in character, and was 
on the 6th day of July, 1882, public land to which the United States 
had full title, not reserved, sold, granted, or otherwise appropriated, 
and free from pre-emption or other claims or rights. The answer 
admits that the land is non-mineral; that defendants have entered 
upon said premises, and are now withholdmg the possession thereof 
from plaintiff; and then denies the allegations of the complaint that 
the said land was public land to which the United States had full 
title and was free from pre-emption or other claims or rights not 
reserved, sold, granted, or otherwise appropriated at the time the 
route of plaintiff's road was definitely fixed and a plat thereof filed 
in the office of the commissioner of the general land office by setting 
up affirmatively (i) that on the 2d day of August, 18S0, Theodore 
H. Kleinschmidt, Edward W. Knight, and six others located under 
the mining laws of the United States and the laws of the territory 
of Montana, as eight distinct mining claims, the north-east quarter 
of said section 21 ; (2) that on the 12th day of August, 1880, 
George P. Reeves, Helen H. Reeves, and six others located under the 
mining laws ofthe United States and the laws of the territory of 
Montana, as eight district mining claims, the north-west quarter of said 
section 21 ; (3; that on the 19th day of February, 1 881, Theodore H. 
Kleinschmidt, Henry M.Parchen,and six others located under the min- 
ing laws of the United States and the laws of the territory of Montana, 
as eight separate mining claims, the south-west quarter of said 
section 21; (4) that on the 13th day of March, 1880, Cornelius 
Hedges, Thomas A. H. Hay, and six others located according to the 



34 NORTHERN PACIFIC RAILROAD CO. VS. 

mineral laws of the United States and the laws of the territory of 
Montana, as eight separate mining claims, the south-east quarter of 
said section 21; that each of the locators above named were citizens 
of the United States; that afterwards the above-named parties 
made application to patent said lands as mineral in the United 
States land office at Helena, Mont., and for this purpose filed all the 
necessary affidavits and notices and proofs required in such cases; 
that afterwards plaintiff in this case protested against the issuing 
of patents to said parties on the ground that the same was non-mineral 
in character, and not subject to be patented as mineral land; that 
on account of this protest a contest was inaugurated in said land 
office as to the right of said parties to a patent for said premises; 
that said contest existed and was pending on the 6th day of 
July, 1882, when the line of plaintiff's road was definitely 
fixed opposite to said land, and a plat thereof filed in the 

office of the commissioner of the general land-office. 
43 To this answer plaintiff filed its demurrer, setting forth that 

the answer does not state facts sufficient to constitute a de- 
fense to the cause of action set up in the complaint. This brings 
up for consideration the question whether or not a mining location 
made according to law upon an old section of land within the limits 
of the Northern Pacific Railroad Company's grant, and an applica- 
tion made by the locators thereof to patent such claim in the United 
States land office as mineral land, and claiming the same to be such, and 
filing all the necessary proofs of location, mineral character, and 
work accompanying such application as is required by law and the 
rules of the land department, and which is pending, and a contest 
in regard to the right of said parties to patent the same is existing 
in the United States land-office at the time the railroad of said com- 
pany was definitely fixed, is sufficient to take such land out of such 
grant, although admitted now to have been non-mineral in charac- 
ter, and hence not subject to be located or patented as mineral 
land. That portion of the act making the land grant to the North- 
ern Pacific Railroad Company, which bears upon this point, is as 
follows: 

"There be and is hereby granted to the Northern Pacific Railroad 
Company, its successors and assigns, for the purpose of aiding in the 



JUNIUS G. SANDERS, ET AL. 35 

construction of said railroad and telegraph lines to the Pacific coast, 
and to secure the safe and speedy transportation of the mails, 
troops, munitions of war, and public stores over the route of said 
line of said railway, every alternate section of public land not min- 
eral, designated by odd numbers, to the amount of twenty alternate 
sections per mile on each side of said railroad line as said company 
may adopt through the territories of the United States, and ten 
alternate sections of land per mile on each side of said railroad 
whenever it passes through any state, and whenever on the line 
thereof the United States have full title, not reserved, sold, granted, 
or otherwise appropriated, and free from pre-emption or other 
claims or rights at the time the line of said road is definitely fixed 
and a plat thereof filed m the office of the commissioner of the gen- 
eral land-office." 

It is urged by defendants that it sufficiently appears from their 
answer that at the time plaintiff's road was definitely fixed a claim 
had attached to this land which excepted it from plaintiff's grant. 
Plaintiff urges (i) that at the time of the location of this land as 
mining claims no claims could attach to this land, because the same 
was at that time withdrawn from settlement or sale by virtue of 
section 6 of the act above referred to, as within 40 miles of the 
general route of its road as located in 1872; (2) that, considering 
there was this claim, it was not a valid claim, as it is admitted it 
was for mineral purposes upon agricultural land. Several cases 
were cited by plaintiff in support of its first proposition, which I do 
not feel called upon to review, because I have found no railroad 
grants to other railroad companies which correspond in all particu- 
lars with that of plaintiff upon that point. The section of the act 
of congress in which is found plaintiff's grant, which it is claimed 
withdraws this kind entirely from market after the general route of 
plaintiff's road was located, is as follows: 

"The president of the United States shall cause the lands to be 
surveyed for forty miles in width on both sides of the entire line of 
said road after the general route shall be fixed, and as fast 
44 as may be required by the construction of said railroad; and 

the odd sections of land hereby granted shall not be liable 
to sale or entry or pre-emption before or after they are surveyed, 
except by said company, as provided in this act." 

The provisions corresponding to this in the act granting to the 



36 NORTHERN PACIFIC RAILROAD CO. VS. 

Union Pacific Railroad Company their land is found in section 7 of 
that act, and is as follows: 

"That within two years after the passage of this act said com- 
pany shall designate the general route of said road as near as may 
be, and shall file a map of the same in the department of the in- 
terior, whereupon the secretary of the interior shall cause the land 
within fifteen miles of said designated route to be withdrawn from 
pre-emption, private entry, and sale; and when any portion of said 
route shall be finally located the secretary of the interior shall cause 
the said lands hereinbefore granted to be surveyed, and set off as 
fast as may be necessary for the purposes herein named." See 12 
St. U. S. 493- 

This act was so amended as to make "fifteen" in this section read 
"twenty." 13 Id. 358. It will be seen by an examination of this 
section as amended that all lands, whether odd or even numbered 
sections, for 20 miles on each side of the general route of said com- 
pany's road, are withdrawn from pre-emption, private entry, and 
sale at the time of the fixing of the general route of that company's 
railroad, without any reference as to whether they are granted lands 
or not. The Central Pacific Railroad Company's grant is the same 
as the Union Pacific Railroad Company's, and subject to the same 
limitations. There is no doubt about the provisions of the Union 
Pacific Railroad and Central Pacific Railroad act requiring all lands, 
whether granted or not, to be withdrawn at the time the general 
route of the road is fixed within the limits of its grant. The act 
making the land grant of the Atlantic & Pacific Railroad Company, 
which is the same as the grant to the Southern Pacific Railroad 
Company, is also materially different from that of the act making 
plaintiff's grant. The section in the act making the grant is the 
third, and is as follows: 

"That there be and is hereb}' granted to the Atlantic & Pacific 
Railroad Company, its successors and assigns, for the purpose of 
aiding in the construction of said railroad and telegraph line to the 
Pacific coast, and to secure the safe and speedy transportation of 
the mails, troops, munitions of war, and public stores over the 
route of said line of railway and its branched, every alternate section 
of public land not mineral, designated by odd numbers, to the 
amount of twenty alternate sections per mile on each side of said 



JUNIUS G. SANDERS, ET AL. 37 

railroad line as said company may adopt through the territories of 
the United States, and ten alternate sections of land per mile on 
each side of said railroad whenever it passes through any state, and 
whenever on the line thereof the United States have full title, not 
reserved, sold, granted, or otherwise appropriated, and free from 
pre-emption or other claims or rights, at the time the line of said 
road is designated by a plat thereof filed in the office of the commis- 
sioner of the general land-ofice." 14 St. U. S. 294. 

It will be seen by a comparison of this grant with that of plain- 
tiff's that in the former the grant takes effect when the line of the 
road is designated by the filing of the plat thereof in the office 

named; in the latter, only when the line is definitely fixed, 
45 and a plat thereof filed in the proper office. I do not see 

but that in the former a plat designating the general route of 
that road, filed in the proper office, would cause the grant to be- 
come fixed, while in the latter the definite route has to be fixed. 
The provision in the Atlantic & Pacific Railroad Comipany's grant, 
which is similar to that of the sixth section in plaintiff's grant, and 
withdraws lands along the route of that road from sale, is as fol- 
lows: 

"That the president of the United States shall cause the lands 
to be surveyed for forty miles in width on both sides of the entire 
line of said road after the general route shall be fixed, and as fast 
as may be required by the construction of said railroad, and the odd 
sections of land hereby granted shall not be liable to sale or entry 
or pre-emption before or after they are surveyed, except by said 
company, as provided by this act." 

If I understand the case of Railicury Co. v. Orto/i, 32 Fed. Rep. 
458, the position is that the filing a plat designating even the general 
route of that company's road fixed the grant, and the law withdraw- 
ing the lands granted took effect. The decisions upon the construc- 
tion of that grant, then, upon this point, — and certainly those that 
pertain to the Union and Central Pacific Railroad Companies, — do 
not apply in this case. They are not even analogous upon this 
point. Plaintiff, however, calls the attention of the court with a 
considerable confidence to the cases of Biittz v. Railroad Co., 119 
U. S. 55, 7 Sup. Ct. Rep. 100, and Denny v. Dodson, 13 Sawy. 68, 
32 Fed. Rep. 899, upon this point. It cannot be denied that 



38 NORTHERN PACIFIC RAILROAD CO. VS. 

there is language in both cases which supports plaintiff's view; but in 
the first case, at least, the language used was not necessary to the 
decision of the question at issue. In the first case it appears from 
the statement of facts that one Peronto, under whom, I suppose, 
plaintiff Buttz claimed, settled upon the land in dispute on the 5th 
day of October, 1871, while the land was situate in the Indian 
country. The United States statutes prohibits any settlement upon 
land in the Indian country. Peronto was, then, a trespasser there. 
On either June 19, 1873, or June 22, 1874, the Indian title was 
extinguished by treaty with the United States, and Peronto was 
found upon the land at that time. But on the 26th day of May, 
1873, some 25 days before, in an^' event, the Indian title was extin- 
guished, the Northern Pacific Railroad Company filed with the 
commissioner of the general land-office a plat of the route of their 
road as definitely fixed across the country upon such a line as would 
include the land Peronto had settled upon within its grant. The 
court held that, notwithstanding this Indian title of occupancy, the 
grant to plaintiff took effect upon the filing of this plat. As the said 
Peronto or Buttz had no settlement which could be at all recognized 
in law, up to this time the grant of the railroad company was prior to 
any rights that either could claim. There could be no doubt but 
when that grant gained precision by the definite fixing of the route 
of plaintiff's road the land in controversy in that case was withdrawn 
from sale or homestead rights, or any other rights that could attach 

to the same subsequent to that definite fixing of the line of 
46 plaintiff's road — First, because it had already been sold to 

plaintiff; and, second, because at that time, by virtue of the 
provisions of section 6, it was excluded from sale or pre-emption or 
homestead settlement because the permanent route of the road had 
been fixed. It appears, however, that the general route of the road 
of plaintiff was fixed and a plat thereof filed on the 3ist dav of 
February, 1872, some four months after Peronto's settlement. The 
court proceeds to say that this act withdrew the land from the 
market. It had not reached that condition when it was in the 
market at that time. The statute preventing settlement upon it as 
within the Indian country prevented it. When it had, the definite 
route of the road had been fixed, and there was no function for the 



JUNIUS G. SANDERS, ET AL. 39 

provisions of section 6 to perform before that time, considering that 
it is Hable to the interpretation given it by the court. As to the 
interpretation of section 6 the very eminent jurist who delivered the 
opinion said; 

"When the general route is thus fixed in good faith, and informa- 
tion thereof given to the land department by filing a map thereof 
with the secretar)' of the interior, the law withdraws from sale or 
pre-emption the odd sections to the extent of forty miles on each 

side." 

It will be seen here that he makes the withdrawal of the land 
from sale, etc., to depend upon the filing of the map of the general 
route with the secretary of the interior. The law does not authorize 
the filing of any such map in plaintiff's grant. It does not say the 
withdrawal shall take effect upon the filing of any such map. In 
the act making the grant to the Union and Central Pacific Railway 
Companies there is a provision for filing such a map, and the with- 
drawal of all the land from market within the limits of the grant to 
these companies. The general language of the opinion would also 
indicate that it was the opinion of the court that section 6 of plain- 
tiff's grant would withdraw all odd sections of land from the market, 
whether mineral or not, or whether homestead or pre-emption 
claims had attached to the same or not prior to the designating this 
general route. That certainly was not contemplated. It would 
appear that the eminent jurist in writing that opinion had in mind 
more the bearing of the provisions of the act making grants to the 
Union Pacific and Central Pacific Railway Companies, with which 
he was undoubtedly very familiar, than the act making plaintiff's 
grant, for he makes no difference hardly in the provisions of these 
two acts, except as to the extent of the grant, while upon this point, 
as I have shown, they are very dissimilar. I think this is a proper 
case in which to apply the rule expressed by Chief Justice Marshall 
as to the authority of a decision in the case of Cohens v. Virginia, 
6 Wheat. 399. In that case, speaking for the supreme court, he 
said: 

"It is a maxim not to be disregarded that general expressions in 
every opinion are to be taken into connection with the case in which 
these opinions are used. If they go beyond the case they may be 



40 NORTHERN PACIFIC RAILROAD CO. VS. 

respected, but ought not to control the judgment in a .subsequent 
suit when the very point is presented for discussion." 

See, also, Barmy v. Railroad Co., \\y U.S. 228-231, 6 Sup. Ct. 

Rep. 654. I do not believe there was any demand for a con- 
47 struction of section 6 in plaintiff' s grant in the case of Biiiiaw. 

Railroad Co., in connection with the filing of the map of the 
general route of its road, and hence the construction made it not 
binding in this case. In the case of Denny v. Dodson, supra, the 
plaintiff brought an action of eject .lent, and in setting up his cause 
of action stated facts sufficient to show the grant of the land in dis- 
pute to the Northern Pacific Railroad Company, under whom he 
claimed; and then undertook to set forth facts to show that the 
land named in that case did not come within any of the limitations 
specified in plaintiff's grant, such as that the same land to which the 
United States had full title not reserved, sold, granted, or otherwise 
appropriated, and free from pre-emption or other claims or rights 
at the time the line of the road was definitely fixed and a plat 
thereof filed in the office of the commissioner of the general land 
office. While it may be doubled whether the plaintiff was required 
to allege dnd prove these facts, they being facts the principal pur- 
pose of which would be to negative any defense that might be pre- 
sented to plaintiff's cause of action in that case, nevertheless, if 
required to be alleged, they should have been alleged directly, and 
not facts which by inference would show that this was true. It is 
an established maxim that material issuable facts as they exist 
should be alleged and not facts from which such facts may be in- 
ferred. Pom. Rem. & Rem. Rights, §5; 5 17, 532; Stringer v. Davis, 
30 Cal. 318. But instead of averring the facts which showed that 
the land was not within any exception to plaintiff's grant directly, 
plaintiff alleges that at the time of the establishment of the general 
route on the 13th of August, 1870, the land was public land not 
mineral, and not reserved, sold, granted, or occupied by homestead 
or other settlers, or otherwise disposed of or located upon, and was 
free from pre-emption or other claims or rights. It seems to have 
been considered, if the lands were withdrawn from the market at 
that time, and this land was not then within any of the exceptions 
in plaintiff's grant, no such claim which could create such an cxcep- 



JUNIUS G. SANDERS, ET AL. 4 1 

tion could arise after that time; hence this was equivalent to an 
allegation that no claims creating such an exception could have ex- 
isted at the time the line of the road was definitely fixed, and a 
plat thereof filed in the office of the commissioner of the general 
land office. I submit that this result is reached only by an infer- 
ence, or arises from an argument on the facts alleged; and this is 
not good pleading. But the eminent jurist thought this was 
equivalent to the other; and stated that, after the date of the es- 
tablishment of the general route, it precluded any town-site, pre- 
emption, or entry on such land, and said: "The law thus with- 
draws the land granted from sale and entry or pre-emption from 
the time the general route is fixed." To me this decision upon this 
point is unsatisfactory, and this court is not precluded by it. In 
looking at section 6 I find no authority for the assertion that any 
lands were to be withdrawn from market on the sides of the general 
route of the road of plamtiff when established. The section does 
not say so. It says the lands granted shall not be liable to sale or 
entry or pre-emption before or after they are survey,ed, except by 

said company. The establishing of the general route of the 
48 road could not determine what were the lands granted. 

These were determined by the fixed route of the road. The 
section does not say they shall be withdrawn at the time of the fix- 
ing of the general route of the road. If it should be so interpreted, 
then we have lands withdrawn from market which are not identi- 
fied, and which may be many miles outside of the 40-mile limit on 
each side of the general route of the road, for the fixed route of the 
road may be a long distance from the general route thereof. Such 
farts have occurred in connection with plaintiff's road in Montana. 
The general route of plaintiff's road as located in 1872 extended 
down the Gallatin river up the Jefferson and Big Hole rivers, to a 
point south of the Deer Lodge pass in the Rocky mountains; thence 
through that pass and down the Deer Lodge river to its present 
route at Garrison. At points in this general route upon a north and 
south line it was near 100 miles south of the fixed route of plaint- 
iff's road near Helena, Mont. There are several places in Montana 
where the fixed route and the general route of plaintiff's road 
materially differ. By the terms of plaintiff's grant in section 3 lands 



42 NORTHERN PACIFIC RAILROAD CO. VS. 

in odd sections within 40 miles north of the fixed route of plaintiff's 
road near said city of Helena, are within it; they are part of the 
lands granted to the plaintiff, and it has asserted title to the same. 
Many of them were not within the 40-mile limit on each side of 
said general route. Yet, if the construction contended for of said sec- 
tion 6 is correct, these lands were withdrawn from market in 1872. 
Lands which have been sold by the United States upon odd sections 
were withdrawn because they were upon odd sections granted. It is 
admitted, and there can be no contention on the point in the light of 
judicial decisions but that the law withdrew the lands granted from 
the market, and they were not withdrawn by any order of the sec- 
retary of the interior. By his order lands near 150 miles south of 
the fixed line of plaintiff's road were sought to be withdrawn from 
market, although it cannot now be contended they were within the 
limits of plaintiff's grant, or granted to it by any construction of the 
law. It cannot, I think, be contended that part of the lands on 
the line of plaintiff's road which were granted to it were withdrawn 
from market by the provisions of section 6, and part not. In my 
judgment, if one section granted was withdrawn when the general 
route of the road was fixed, then all such lands were withdrawn. I 
think there is enough dispute about the construction of section 6 to 
drive us to the established rules for construing legislative grants in 
considering the same. Rights were given plaintiff in this section. 
In construing legislative grants they are to be construed against the 
grantee and in favor of the grantor. 3 Washb. Real Prop. (4th Ed.) 
190. "The rule of construction in all such cases is now full}' es- 
tablished to be this: That any ambiguity in terms of the contract 
must operate against the adventurers and in favor of the public, and 
the plaintiff can claim nothing that is not clearly given in the act." 
Proprietors v. Wliccly, 2 Barn & Adol. 793. This rule is fully ap- 
proved by the supreme court in the case of Charles Rii'cr Bridge 
V. Warren Bridge, I i Pet. 420. In the case of Railroad Co. v. 
Litchfield, 23 How. 66, the supreme court said: 

49 "All grants of this description arc construed againsl the 

grantee. Nothing passes but what is conveyed in clear and 
explicit language; and, as the rights here claimed are derived en- 
tirely from the act of congress, the donation stands on the same 



JUNIUS G. SANDERS. ET AL. 43 

footing as a grant by the pul)lic to a private company, the terms of 
which must be plainly expressed in the statute, and, if not thus 
expressed, they cannot be implied." 

To the same effect are the cases of Rice v. Railroad Co., i Black, 
360; Railroad Co. v. U. S., 92 U. S. 733. The reason of this rule 
is thus expressed in Gildart v. Gladstone, 11 East, 675. 

"The reason of this rule is obvious. Parties seeking grants for 
private purposes usually draw the bills making them. If they do 
not make the language explicit and clear to pass everything that is 
intended to be passed, it is their own fault; while, on the other 
hand, such a construction has a tendency to prevent parties from 
inserting ambiguous language for the purpose of taking by ingenious 
interpretation and insinuation that which cannot be obtained by 
plain and express terms." 

This language was quoted and approved by the supreme court in 
the case of Railroad Co. v. Litchfield, mpra. If it is said this is a 
law, and we must be governed by the intention of the- law-making 
power, the answer is that in construing such a law the intention 
should be formed from the terms used and the subject-matter under 
consideration, and it should be recognized that it makes a grant of 
land. In the case of Railroad Co. v. U. S., supra, the supreme 
court in speaking of a land grant made in 1863 (the year before the 
plaintiff's grant) to the state of Kansas, said : 

"Formerly lands which would probably be affected by a grant 
were, as soon as it was made, if not in advance of it, withdrawn 
from market. But ' experience proved that this practice retarded 
settlement of the country, and at the date of this act the rule was 
not to withdraw them until the road should be actually located. In 
this way the ordinary working of the land system was not- disturbed. 
Private entries, pre-emption, and homestead settlements, and reserv- 
ations for special uses, continued within the supposed limits of the 
grant the same as if it had not been made; but they ceased when 
the routes of the roads were definitely fixed." 

We learn from this the state of mind congress was in upon this 
subject. The great body of the country on the pi'oposed route of 
plaintiff's road at the time of the grant was Indian country, to which 
the Indian title of occupancy was not extinguished. But very few 
of the lands along this route had been surveyed. Yet most of the 



44 NORTHERN PACIFIC RAILROAD CO. VS. 

* 

country was accessible. It could hardly have been contemplated 
that it would be i8 years after the grant was made before the fixed 
route of that road would be established in Montana. It was very 
uncertain from the nature of the country what would be the fixed 
route of that road. The determination of this fixed route would 
give precision to the grant made plaintiff, and furnish a data for 
determining what lands had been granted. Can it be supposed that 
congress intended, lo j'ears before the fixed route of plaintiff's road 
was established, to withdraw the lands granted to plaintiff from 
market, and leave it to subsequent explorations and surveys to 
determine what would be the lands granted.'' Upon such lands, 

during the time of these explorations and surveys, homes 
50 might be established and cities built. But it is said they 

were notified what these lands were by the establishing of 
the general route. As I have stated before, there are lands confes- 
sedly within plaintiff's grant which were not within the 40-miles 
limit on the line of the general route of plaintiff's road as established 
in 1872, and there are lands within it which were not granted to 
plaintiff. There might have been much more land of that character 
if some of the routes said to have been examined by that company 
had been finally adopted. As to what were the lands granted 
plaintiff, and when the grant attached to specific lands, we have a 
guide in the case of Railway Co. v. Dumucycr, 113 U. S. 629, 5 
Sup. Ct. Rep. 566, which interpreted the third section in the 
Union Pacific Railroad Company's grant, which is almost identical 
with the same section in plaintiff's grant. See 12 St. U. S. 492. In 
that case, speaking through the distinguished Justice Miller, the court 
said : 

"The land granted by congress was from its very character and 
surroundings uncertain in many respects until the thing was done 
which should remove that uncertainty and give precision to the 
grant, Wherever the road might go the grant was limited original- 
ly to five sections, and by the amendment of i(S64 to ten sections, 
on each side of it within the limits of twenty miles. These were to 
be odd-numbered sections, so that the even-numbered did not pass 
by the grant; and these odd-numbered were to be those not sold, 
reserved, disposed of by the United States, and to which a pre-emp- 
tion or homestead ritjht had not attached at the time the line of said 



JUNIUS G. SANDERS, ET AL. 45 

road is delinitely fixed. When the line was fixed, — which we have 
already said was by the act of filing this map of definite location in 
the general land office, — then the criterion was established by which 
the lands to which the road had a right were to be determined. 
Topographically this determined which were the ten odd sections on 
each side of that line where the surveys had been made. This fil- 
ing the map of definite location furnished also the means of deter- 
mining what lands had previously to that moment been sold, re- 
served, or otherwise disposed of by the United States, and to which 
a pre-emption or homestead claim had attached, for by examining 
the plat of this land in the office of Lhe register and receiver or in 
the general land-office it could readily have been seen if any of the 
odd sections within ten miles of the line had been sold or disposed 
of or reserved or a homestead or pre-emption claim had attached to 
any of them. In regard to all such sections they were not granted. 
The express and unequivocal language of the statute is that the odd 
sections not in this condition are granted. The grant is limited by 
its clear meaning to the other odd sections, and not these." 

We have here a clear assertion that what lands are granted are 
only determined when the line of the road is definitely fixed. In 
quite a number of decisions by the supreme court it is said of such 
grants as the one under consideration they are in the nature of 
floats. \Vhen the route of the road is fixed which the law defines 
shall fix the grant then it takes precision, and attaches to certain 
specific lands. Sc/ui/ciibcrgy. Harrimaii, 21 Wall. 60; Railroad 
Co. v. U. 5., 92 U. S. 741; Railroad Co. v. Price Co., 133 U. S. 
509, 10 Sup. Ct. Rep, 341. Can it be that congress intended to 
say in the act granting lands to plaintiff that, although it will not be 
known until plaintiff designates a fixed line for its road and files its 
map thereof in the office of the commissioner of the general land 

office, what specific lands are granted to it, yet these lands 
5 I granted, as in this case, are to be withdrawn from market 

10 years or more before it is known what they are and where 
situate.' This construction would make the intention of congress 
unreasonable, which should never be maintained until there is no 
escape. A reasonable intent should always be presumed. The 
construction urged would make the statute about as unreasonable as 
one which doomed a man to capital punishment 10 years before he 
was born. Taking into consideration all these facts, I do not think 



46 NORTHERN PACIFIC RAILROAD CO. VS. 

section 6 should be so construed as to withdraw any land from 
market until the line of plaintiff's road should be definitely fixed 
opposite the same, and a plat thereof filed with the commissioner of 
the general land office, \ 'hen the situation of such lands would be 
known. 

But let it be admitted that the land granted was withdrawn from 
market at the time of the filing of the plat of the general route of 
plaintiff's road. Then the question arises what are the lands 
granted.' The act does not say "every odd section within forty 
miles of such general route," but "public lands not sold, reserved, 
or otherwise appropriated, and free from pre-emption or other 
claims or rights, at the time the route is definitely fixed, and a plat 
thereof filed in the office of the conmiissioner of the general land 
office." This brings us back to the same point as the construction 
contended for. The land granted must at this time be free from a 
claim, or it is not land granted. Hence I hold that the premises in 
dispute were subject to be entered upon and a claim inaugurated at 
any time before the definite line of plaintiff's road was fixed and the 
plat thereof filed in the proper office. 

The next question is as to whether the claim made upon these 
lands would avail if not a valid claim. The premises being agri- 
cultural, no valid claim of them for mining purposes could be made. 
The language for consideration here in the act making the grant to 
plaintiff is: "Shall be free from pre-emption or other claims or 
rights." What, in effect, the court is asked to do in construing this 
clause IS to insert before "claims" the word "valid," so the clause 
would read ' 'free from pre-emption or other valid claims or rights. " Can 
the court do this.' In the case of Ncivliall v. Sans^cr, 92 U. S. 761, 
the supreme court was called upon to construe a statute of the 
United States in which the words "lands claimed under any foreign 
grant or title" occurred. The position taken in that case was that 
the word "lawfully" should be placed before "claimed." But the 
court said there is no authority to import a word into a statute in 
order to change its meaning In the case oi Railroad Co. v. V. S., 
supra, the supreme court quoted with approval this language of 
Patterson, J., in Rex v. BurrcIL 12 Adol. & E. 405: 



JUNIUS G. SANDERS, ET AL. 47 

"I see the necessity of not importing into statutes words which are 
not found there. Such a mode of interpretation only gives occasion 
to endless difficulty." 

And then said: 

"Courts have always treated the subject in the same way when 
asked to supply words in order to give a statute a particular mean- 
ing which it would not bear without them." 

52 The word "valid" or "lawful," placed before "claims," 

would give the statute a different meaning from what it has 
without them. If they would not, plaintiff would not ask to have one 
or the other placed there. Here again the rule applies as to the 
construction of legislative grants. Nothing passes by such but what 
is conveyed in the act making the grant in clear and unambiguous 
terms. Such a grant must be construed most strongly against the 
grantee. Nothing is supplied by implication. There is another 
matter in this connection worthy of much consideration. If only 
lands which are free from valid or lawful claims at the date plaintiff 
fi.xed the definite line of its road are to be excluded from the grant, 
then the question is left open for consideration between plaintiff 
and any person who may have had a claim upon any odd section of 
land within its grant, the assertion of claim to which occurred since 
the act making the grant; for it can hardly be maintained that plain- 
tiff would be bound by any determination as to the validity or law- 
fulness of a claim made by the land department which is junior to 
the grant to it. When the route of plaintiff's road was definitely 
fixed its grant to the lands received by it would relate back to the' 
date of the act making the grant, and take effect as of that date. 
This, in substance, is the language of many decisions in construing 
similar grants. Under these conditions plaintiff could inquire into 
every claim which had its inception subject to the date of its grant, 
whether patented or not, and have it determined as to whether it 
was valid or not. The point as to whether a homestead claim had 
attached to a parcel of land within the limits of the grant to the 
Kansas & Pacific Railway Company was considered by the supreme 
court in a case where that company was plaintiff and Dunmeyer 
was defendant, which was cited supra. In that case the court 
said : 



48 NORTHERN PACIFIC RAILROAD CO. VS. 

"It is not conceivable that congress intend to place these parties 
as contestants for the land, with the right in each to require proof 
from the other of complete performance of its obligation. Least of 
all is it to be supposed that it was intended to raise up, in antagon- 
ism to all actual [t/w] settlers on the soil when [za/ioi/i] it had invited 
its occupation, this great corporation, with an intent [i/iJrrc-st] to de- 
feat their claims, and to come between them and the government 
as to the performance of their obligations." 

I do not see why this language is not as applicable to a party as- 
serting a right to a mining claim as to one asserting a right to a 
homestead claim ; and, if so, I might say it is inconceivable that 
congress intended to give to plaintiff the right to test the validity of 
every mining claim which existed within 40 miles of the line of its 
road at the time the same was definitely fixed. Under such cir- 
cumstances, public policy would dictate that the terms of limitation in 
plaintiff's grant should not be so modified as to permit such a con- 
dition of affairs. I think the facts presented show that the assertion 
of title by the parties who located the ground in dispute, as mineral 
land should be dignified with the appellation of a "claim." I would 
not say that every assertion of title to land would be entitled to the 
term "claim." Perhaps acts sufficient should accompany the asser- 
tion of title to entitle the claimant to a standing in a court of 

53 justice to contest the right to possession of the premises; 
but I am not called upon in this case to determine more than 

that facts sufficient appear to show that the parties who had located 
this land in dispute as mineral had a claim thereon at the time the 
route of plaintiff's road was definitely fixed. The fact that it was 
determined subsequent to the fixing of such route that this claim 
was invalid would not restore the premises to plaintiff's grant. It 
was excluded therefrom. This was fully considered in the case of 
Raihuay Co. v. Diinincvcr, siipi-n. For these reasons the demurrer 
to the answer is overruled. 
Filed April 6th, 1891. 

GEO. W. SPROULE, Clerk. 

54 And thereafter to-wit on the 7th day of April, A. D. , 1891, 
the following further proceedings were had and entered of 

record in said cause in the words and figures following, to-wit: 



JUNIUS G. SANDERS. ET AL. 49 

In the Circuit Court of the United States, Ninth Circuit, District of 

Montana. 

Second day April term, A. D., 1891: Tuesday, April 7th, 1891, 
10 A. M. Court convened pursuant to adjournment. 

Present; Honorable Hiram Knowles, United States District Judge. 

No. 62. Northern Pacific R. R. Co. vs J. G. Sanders, ei al. 

Counsel for plaintiff in this cause asked that plaintiff be granted 
time until April 25th, 1^91, to file reply in this case or further plead 
herein. Whereupon it is so ordered. 

And thereafter to-wit: on the 27th day of April, A. D. , 1891, the 
following further proceedings were had and entered of record in said 
cause in the words and figures following, to-wit: 

In the Circuit Court of the United States, Ninth Circuit, District of 

Montana. 

Eighteenth day April term, A. D.. 1891, Monday, April 27th, 1891, 
2 P. M. Court convened pursuant to adjournment: 

Present: Honorable Hiram Knowles, United States District Judge 
for the District of Montana. 

No. 62. Northern Pacific R. R. Co. vs. J. G. Sanders, et nl. 

Counsel for plaintiff here stated that he desired to file a motion 
for a re-hearing, and asked for and was granted an extension of 
time, to-wit: until April 28th, 1891, to file said motion. 

And thereafter on the 30th day of April, A. D., 1891, 
55 plaintiff filed its motion for a re-hearing in said cause, which 

said motion is in the words and figures following, to-wit: 

In the Circuit Court, for the District of Montana. 

Northern Pacific Railroad Company, Plaintiff, . 

vs. \ 

Junius G. Sanders, r;* rt'/. , Defendants. ) 

Motion for Rc-hcaring. 

Now comes the plaintiff in the above entitled cause and moves for 
a re-hearing therein for the reasons: 



50 NORTHERN PACIFIC RAILROAD CO. VS. 

I. 

That at the hearing in the above entitled cause, it was conceded 
by said defendants and their attorneys that under the act of con- 
gress, approved Juh^ 2, 1864, the odd numbered sections of public 
lands on and within forty miles of the general route of the Northei-n 
Pacific Railroad were, by virtue of said act reserved from sale, pre- 
emption or entry; that relying upon said concession and believing 
said proposition to be unquestioned, plaintiff did not at such hearing 
discuss or argue this proposition save as sucli proposition was in- 
volved in an argument as to whether such reservation, assuming 
there was such, reserved said lands from mineral entry; and that 
consequently the decision made and rendered in said cause, holding 
and deciding that as a matter of law, said act of congress did not 
create a reservation of such lands from sale, pre-emption or entry 
upon fixing the general route of said road was made and rendered 
without having heard full argument by counsel. 

II. 

That the decision of the court that the said act of congress 
56 did not forbid the sale or entry of [or] location of odd numbered 
sections of public land on and within forty miles of the gen- 
eral route of said Northern Pacific Railroad, is contrary to the long 
continued uniform construction of said act by the interior depart- 
ment of the United States. 

That such long continued, uniform construction by the Interior 
Department of the United States of said act of congress, approved 
July 2nd, 1864, was not called to the attention of the court, at the 
hearing in the above cause; and was not considereti by the court in 
deciding said cause. 

III. 

That the decision of the court herein is in conflict with prior de- 
cisions of the circuit court for the Ninth circuit, construing this same 
statute, that such prior decisions made by the circuit justice and 
circuit judge for the Ninth judicial circuit, rendered after full argu- 
ment by counsel, and mature and full consideration by the court. 



JUNIUS G. SANDERS, ET AL. $1 

are authoritative, an<i should be followed until reversed by the prop- 
er appellate court. 

IV. 

That the decision herein is in direct conflict with the decision of 
the United States supreme court in the case of Buttz vs. NortJicni 
Pacific Railroad Company, decided November i Sth, 1886, and in 
the case of St. Paul & Pacific R. R. Co. vs. Northern Pacific Rail- 
road Co., decided March 2nd, 1891, and since the argument and 
submission of this case. 

That said decisions are authoritative, being rendered after full ar- 
gument by counsel and mature deliberation and consideration by the 
court, and should be followed by this court. 

V. 

That the construction heretofore placed upon this act by the in- 
terior departnient of the United States, the attorneys general, the 
supreme courts of states, the circuit courts and supreme court of the 
United States, in direct conflict with the decision herein, had 
57 been ratified and affirmed by congress prior to the hearing 

herein; that by such ratification and affirmation such construc- 
tion became and is a part of the law, and is final and conclusive. 

That such ratification and affirmation were not called to the at- 
tention of the court at the hearing herein, and were not considered 
by the court in rendering such decision. 

F. M. DUDLEY, 

Attorney for Plaintiff. 

Due service of the above motion is hereby acknowledged this 30th 
day of April, 1S91. ADKINSON & MILLER, 

Of counsel for Defendants. 

[Endorsed:] No. 62. U. S. Circuit Court, District of Montana. 
Northern Pacific R. R. Co., plff. 7'.?. J. G. Sanders ct al., Defts. 
Motion for re-hearing. Filed April 30th, 1891. Geo. W. Sproule, 
Clerk. F. M. Dudley, Atty for Plff. 

And thereafter, to-wit: on the 7th day of May, A. D. 1 891, the follow- 
ing further proceedings were had and made of record in said cause 
in the words and figures following, to-wit:. 



53 NORTHERN PACIFIC RAILROAD CO. VS. 

In the Circuit Court of the United States, Ninth Circuit, District of 

Montana. 

Twenty-seventh day April term, A. D. 1891: Thursday, May 7th, 
1 89 1, 10 A. M. Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States district judge 
for the district of Montana. 

No. 62. Northern Pacific R. R. Co. 7-s. J. G. Sanders, cf al. 

Ordered that the motion for a re-hearing in this cause be contin- 
ued for the term. 
58 And thereafter on the loth day of August, A. D. 1891, the 

following further proceedings were had and entered of record 
herein in the words and figures following to-wit : 
In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 
63rd day, April Term, A. D. 1891; Monday, August loth, 1891, 
10 A. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District 
Judge, for the District of Montana. 

No. 62 — Northern Pacific Railroad Co. \ 

vs. \ 

J. G. Sanders, ct al. j 

On motion of counsel for plaintiff, counsel for defendants consent- 
ing thereto, the motion of plaintiiT for a rehearing herein is ordered 
set for hearing August 15th, 1891, at 2 o'clock P. M. 

And thereafter on the 15th day of August, A. D. 1891, the fol- 
lowing further proceedings were had and entered of record in said 
cause in the words and figures following, to-wit: 

In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 

65th day, April Term, A. D. 1891, Saturdav, August 15th, 1891, 
2 P. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District 
Judge for the District of Montana. 



JUNIUS G. SANDERS, ET AL. 53 

No. 62 — Northern Pacific Railroad Company ) 

Junius G. Sanders, cf al. ) 

This cause came on this day for hearinj^ upon the motion of 

plaintiff herein for a rehearing upon the demurrer of plain- 

59 tiff's to the answer of defendants, and after consideration it 

is ordered, that said motion be and the same is hereby 

granted and allowed. 

Whereupon the demurrer of plaintiff was argued by F. M. Dudley, 
Esq., of counsel for plaintiff, and by W. F. Sanders, Esq., of 
counsel for defendants, and thereupon said demurrer was submitted 
to the court for consideration and decision; and thereupon, after 
due consideration it is by the court ordered that said demurrer be 
and the same is hereby overruled. 

And the plaintiff thereupon electing to abide by its said demurrer, 
and declining to further amend or plead herein, on motion of counsel 
for defendants it is ordered that judgment be entered herein in favor 
of defendants for their costs, and judgment ordered entered in ac- 
cordance therewith. 

And thereafter on said day, to-wit: August 15th, A. D. 1891, 
judgmeint for the defendants was entered in the words and figures 
following, viz: 

In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 

Northern Pacific Railroad Co. \ 

'vs. \ 

Junius G. Sanders, ct al. ) 

In this case upon the application of the plaintiff for a rehearing 
upon its demurrer to the answer of the defendants to plaintiff's 
amended complaint, the same was this 15th day of August, 1891, 
granted, and such rehearing was had and the said case was argued 
by counsel. 

On consideration whereof the demurrer of the plaintiff to defend- 
ants' said answer to its amended complaint was overruled, and the 
said plaintiff electing to abide by its said demurrer on the day last 
named, the same cause came on to be heard upon the amended 



54 NORTHERN PACIFIC RAILROAD CO. VS. 

complaint of the plaintiff, the Northern Pacific Railroad Com- 

60 pany, and the answer of the defendants thereto, in considera- 
tion whereof it is considered by the court that the defendant 

Junius G. Sanders, Wilbur E. Sanders, James U. Sanders and 
Sarepta M. Sanders do have and recover their costs in this behalf 
expended taxed at $3. 10 and that they go hence without day. 

Filed and entered August 15th, 1891. 

GEO. W. SPROULE. Clerk. 

And thereafter on said 15th day of August, 1891, the following 
further proceedings were had and entered of record in said cause 
in the words and figures following, viz: 

In the Circuit Court of the United States, Ninth Circuit, District 

of Montana. 

65th day, April Term, A. D. 1891; Saturday. August 15th, 1891, 
P. M. 

Court convened pursuant to adjournment. 

Present: Honorable Hiram Knowles, United States District Judge, 
for the District of Montana. 

No. 62 — Northern Pacific Railroad Company, \ 

Junius G. Sanders, ri n/. • ) 

On motion of counsel for plaintiff, the bond on writ of error 
herein, is ordered fixed in the amount of $500.00. 

And thereafter said plaintiff filed its assignment of errors herein 
which said assignment of errors is in the words and figures follow- 
ing, to-wit: 

61 In the United States Circuit Court for the Ninth Circuit, 

District of Montana. 
Northern Pacific Railroad Company, Plaintiff. 

7'S. 

Junius G. Sanders, Wilbur E. Sanders, James U. Sanders. 
and Serepta M. Sanders, Defendants. 

Assignment of Errors. 

Now comes the said Northern Pacific Railroad Company, by its 
attorney, and says that in the records and proceedings in the above 
entitled action, in the said United States Circuit Court for the Ninth 



JUNIUS G. SANDERS, ET AL. 55 

Circuit, District of Montana, there is manifest error as follows, 
to-wit: 

I. 

The said Court held that the odd numbered sections of non-min- 
eral, public land, to which the United States had full title, not re- 
served, sold, granted or otherwise appropriated, and which were 
free from pre-emption or other claims or rights when the general 
route of the Northern Pacific Railroad was fixed, and which were on 
and within forty miles of the line of such general route, were not, 
whether surveyed or unsurveyed, by the fixing of such general route, 
withdrawn from sale, pre-emption or entry, except by said 
62 railroad company. 

II. 

The said court held that section twenty-one (21) township ten 
(10) north, of range three (3) west, P. M. Montana, was, after said 
Northern Pacific Railroad Company fixed the general route of its 
road opposite thereto and within forty miles thereof, to-wit. : Feb- 
ruary 2 I St, 1872, subject to sale, pre-emption and entry by parties 
other than said Northern Pacific Railroad Company. 

III. 

The said court held that the mineral locations, claim, and ap- 
plications for patent for the Northeast quarter (N-Ej) of section 
twenty-one (21) township ten (10) north, of range three (3) west, 
P. M. Montana, by Theodore H. Kleinschmidt, Edward W. Knight, 
Henry M. Parchen, Charles K. Wells, George P. Reeves, David H. 
Cuthbert, Cornelius Hedges and Stephen E. Atkinson, for the 
northwest quarter (N.W. ^) of said section by George P. Reeves, 
Helen H. Reeves, Laura C. Ballow, John W. Eddy, Evelyn M. 
Eddy, Edward W. Knight, Theodoria M. Knight and Anna Naoolia 
King, for the southwest quarter (S.W.^) of said section by Theodore 
H. Kleinschmidt, Henry M. Parchen, David H. Cuthbert, Stephen 
A. Atkinson, Lucius C. Rosecrans, Emma M. Parchen, Mary M. 
Kleinschmidt, and Anna E. Cuthbert, for the southeast quarter 

(S.E.^) of said section by Cornelius Hedges, Thomas A. H. 
6^ Hay, Mary L.Guthrie, Patrick Quinn, Louis A.Walker, William 

D.Wheeler, EdiTa L. Hedges, George E. Carpenter, Russell B. 



56 NORTHERN PACIFIC RAILROAD CO. VS. 

Harrison, as set forth in the answer to the amended complaint, 
herein, and the pendency of the contest, or contests, before the 
United States district land oflfice, between said parties, and the said 
Northern Pacific Railroad Company, as to the quality of the soil of 
said section, at the time the line of the said Northern Pacific Rail- 
road opposite to and within forty miles of said section twenty-one 
(21) was definitely fixed, and a plat thereof filed in the office of the 
commissioner of the general land office, to-wit: July 6th, 18S2, ex- 
cluded said lands from the description of public lands to which the 
United States had full title, not reserved, sold, granted, or other- 
wise appropriated, and free from pre-emption or other claims or 
rights, and operated to exclude said land from the grant to said 
Northern Pacific Railroad Company b}' the act of congress approved 
July 2nd, 1864. 

IV. 

The said court held that the mineral locations, claims and appli- 
cations for patent for the northeast quarter (N.E. j) of said section 
twenty-one (21) township ten (10) north of range three (3) west, P. 
M. Montana, by Theodore Kleinschmidt, Edward W. Knight, Henry 
M. Parchen, Charles K. Wells, George P. Reeves, David H. Cuth- 
bert, Cornelius Hedges and Stephen E. Atkinson, for the northwest 
quarter (N.W.j) of said section by George P. Reeves, 
64 Helen H. Reeves, Laura C. Ballow, John W. Eddy, 

Evelyn W. Eddy, Edward W. Knight, Theodosia M. 
Knight and Anna Natolia King; for the south west quarter 
[S.W.^] of the said section by Theodore H. Kleinschmidt, 
Henry M. Parchen, David H. Cuthbert, Stephen Atkinson, 
Lucius J. Rosecrans, Emma M. Parchen, Mary M. Kleinschmidt 
and Anna E. Cuthbert; for the southeast quarter [S.E.j] of said 
section by Cornelius Hedges, Thomas A. H. Hay, Mary L. Guthrie, 
Patrick Quinn, Louis A. Walker, William D. Wheeler, Edna L. 
Hedges, George E. Carpenter, Russell B. Harrison, as set forth in 
the answer to the amended complaint herein, were not null and void, 
and of no effect whatever. 

V. 

The said court held that section twenty-one (21 ) township ten 



JUNIUS G. SANDERS, ET AL. 57 

(lo) north, of range three (3) west, P M., Montana, although nofi- 
mineral in character, was subject to a mineral location, claim or 
entry. 

VI. 

The said court held that the mineral location, claim, and application 
for patent for said section twenty-one (21), township ten (10) north, 
of range three (3) west, P. M., asset forth in the answer to the 
amended complaint herein, operated to reserve, grant or appropri- 
ate said land or cause the same to cease to be free from pre- 
emption, or other claims or rights so as to exclude the same from 
the grant to the Northern Pacific Railroad Company. 

05 VII. 

The said court failed and declined to hold that said North- 
ern Pacific Railroad Company was the owner of and entitled to the 
possession of said section twenty-one (21), township ten (10), 
north, of range three (3) west, P. M., Montana. 

VIII. 

The said court held that said answer to the amended complaint 
in the above entitled action states facts sufficient to constitute a de- 
fence or counter claim. 

Wherefore, said Northern Pacific Railroad Company prays that 
the said judgment of the said United States circuit court for the 
district of Montana be reversed, and that said court be ordered to 
enter an order reversing the judgment herein, and sustaining said 
demurrer. 

FRED. M. DUDLEY, 
Attorney for Northern Pacific Railroad Company. 

[Endorsed.] No. 62. In the circuit court of the United States, 
Ninth Circuit, district of Montana. Northern Pacific Railroad Co. 
Plff. vs. J. G. Sanders, rt a/, Defts. Assignment of errors. Filed 
August, 17th, 1 89 1. Geo. W. Sproule, Clerk. 

And thereupon and at the same time to-wit: August 17th, 1891, 
plaintiff filed its petition for a writ of error herein which said petition 
for a writ of error is in the words and figures following to-wit: 



58 NORTHERN PACIFIC RAILROAD CO. VS. 

66 In the United States Circuit Court for the Ninth Circuit, 

District of Montana. 

Northern Pacific Railroad Company, Plaintiff, 
vs. 
Junius G. Sanders, Wilbur E. Sanders, James U. Sanders 
and Serepta M. Sanders, Defendants. 

Petition for Writ of Error. 

To the Honorable Judges of the United States Circuit Court of 
Appeals for the Ninth Circuit: 

Now comes the said Northern Pacific Railroad Company, by Fred 
M. Dudley, its attorney, and complains that in the record and pro- 
ceedings, and also in the rendition of judgment in the above en- 
titled cause, in said United States Circuit Court for the Ninth Cir- 
cuit, District of Montana, at the April term thereof, A. D. 1891, 
against said Northern Pacific Railroad Company, on the fifteenth 
day of August, A. D. 1891, manifest error hath intervened to the 
great damage of said Northern Pacific Railroad Company; where- 
fore the said Northern Pacific Railroad Company prays for the 
allowance of a writ of error and such other process as may cause the 
same to be corrected by the said United States Circuit Court 

67 of Appeals for the Ninth Circuit. 

FRED M. DUDLEY, 
Attorney for Northern Pacific Railroad Company. 
Allowed. 

HIRAM KNOWLES. 

U. S. Dist. Judge. 
[Endorsed.] No. 62. — In the Circuit Court of the United States, 
Ninth Circuit, District of Montana. Northern Pacific Railroad 
Co., Plff., vs. J. G. Sanders, et nl., Defts. Petition for Writ of 
Error. Filed Aug. 17th, 1891, Geo. W. Sproule, Clerk. 

And thereafter and on the 19th day of August, A. D. 1891, plain- 
tiff filed its bond on writ of error duly approved, which said bond is 
in the words and figures following, to -wit: 



JUNIUS G. SANDERS, ET AL. 59 

68 In the United States Circuit Court for the Ninth Circuit, 

District of Montana. 

Northern Pacific Railroad Company, Plaintiff, ^ 

Junius G. Sanders, Wilbur E. Sanders, James U. Sanders [ 
AND Serepta M. Sanders, Defendants. J 

Know all men by these presents, that we Northern Pacific Rail- 
road Company, by Fred M.Dudley, its attorney, and E. W. Knight, 
T. H. Kleinschniidt, of the City of Helena, State of Montana, are 
held and firmly bound unto Junius G. Sanders, Wilbur E. Sanders, 
James U. Sanders and Serepta M. Sanders, the above named de- 
fendants, in the sum of five hundred dollars, to be paid to the said 
defendants, their executors or administrators; for the payment of 
which well and truly to be made, we bind ourselves, and each of us 
jointly and severally, and our heirs, executors and administrators, 
firmly by these presents. 

Sealed with our seals and dated this i8th day of August, A. D. 
1891. 

Whereas, The above named Northern Pacific Railroad 

69 Company has prosecuted a Writ of Error in the United States 
circuit court of Appeals for the Ninth circuit, to reverse the 

judgment rendered in the above entitled action by the United States 
Circuit Court for the Ninth Circuit, District of Montana, at the 
April term of said court, A. D. 1891, 

Now therefore, the condition of this obligation is such, that 
if the above named Northern Pacific Railroad Company shall prose- 
cute its said writ of error to effect and answer all costs and damages, 
if it shall fail to make good its plea, then this obligation shall be 
void; otherwise to remain in full force and effect. 

NORTHERN PACIFIC RAILROAD COMPANY, 

By FRED M. DUDLEY ]Seal] 
E. W. KNIGHT [Seal] 

T. H. KLEINSCHMIDT [Seal] 
Signed and sealed in the presence of Geo. H. Hill. 
I approve the above bond and the sufficiency of the sureties 
thereto. HIRAM KNOWLES. 

U. S. Dist. Judge. 



6o NORTHERN PACIFIC RAILROAD CO. VS. 

[Endorsed] No. 62 — In the Circuit Court of the United States, 
Ninth Circuit, District of Montana. N. P, R. R. Co. 7's. J. G. 
Sanders et al. Bond filed Aug. 19, i8gi. 

GEORGE W. SPROULE, Clerk. 

70 And thereafter to-wit: on the 8th day of September, A. D. , 
1 89 1, (the court having stated on the i 5th day of August, 

A. D., 1 89 1, that it desired to file another opinion in said cause and 
the attorneys for both parties consenting that said opinion might be 
filed thereafter,) the following opinion was filed in said cause over- 
ruling said demurrer upon a re-hearing thereof, which said opinion 
is in the words and figures following, to-wit: 

71 Opinion. 

In the United States Circuit Court, District of Montana. 

Northern Pacific Railroad Company, Plaintiff. 1 

vs. \ 

J. G. Sanders, ct al.. Defendants. ) 

Knowles, J. 

The motion for a re-hearing in this case by consent was granted, 
and upon the pomt as to whether the alternate odd sections of land 
non-mineral to which the government of theUnited States had full 
title, not reserved, sold, granted or otherwise appropriated and free 
from pre-emption or other claims or rights at the time the general 
route of plaintiff's road was fixed to the width of forty miles on each 
side of the said general route in Montana, by virtue of section six of 
the act in which is found the grant of land to plaintiff, was reserved 
from sale, entry or pre-emption was re-argued. 

I have determined to adhere to my former ruling, and to hold 
that said section six should not be construed to have this effect 
although it must be confessed that the able counsel for plaintiff pre- 
sented many new and pursuasive authorities upon this point. 

He urges that the point was presented in the brief of counsel to 
the supreme court for its consideration in Butte v. The Northern 
Pacific R. R. Co. 119, U. S. 55. In the statement of the case 
and of the points presented on the part of the appellant Buttz, in 
the official report of this case no such point is presented. The 
court in that case found without reservation that the agreement be- 



JUNIUS G. SANDERS, ET AL. 6l 

twecn the Indian tribes who held the right of occupancy to the land 
in dispute, which agreement extinguished this right of occupancy 
was not in force until approved by the secretary of the interior. 

It says on page 69 of opinion: 
72 "This modified agreement must be considered as accepted 

on the part of the United States when it was approved by the 
secretary of the interior." This was on the 19th of June, 1873. 

The map of the definite location of plaintiff's road was filed with 
the commissioner of the general land office on the 26th day of May, 
of the same year. 

The court having fully shown that the right of pre-emption could 
not attach to government land until after the Indian title of occu- 
pancy had been extinguished, and that nothwithstanding 
the Indian title of occupancy, the grant to plain- 
tiff attached to the land in dispute as soon as 
the definite route of plaintiff's road was fixed and a map thereof 
filed m the office of the commissioner of the general land office, 
there was no ground upon which appellant Buttz could rest. 
The court did not find as a fact that the agreement to cede the 
Indian title of occupancy took effect at the time the Indians con- 
sented to the proposed agreement. The judgment of a court is res 
ad Judicata when based upon facts found. Certainly the construc- 
tion of sections six of said act and the effect of fixing the general 
route of plaintiff's road was not required for a determination of the 
case. 

The supreme court in Barney v?,. Winona, &c., R. R. Co., 117 U. 
S. 228, said of the decision of an important point when it was pre- 
viously before it: 

"The statement was not at all material to the decision which was 
that a deduction should have been made by reason of the intersec- 
tion of two grants so far as the prior grant was located within the ex- 
tension. We recognize the rule that what was decided in a case pend- 
ing before us on appeal is not open to reconsideration in the same case 
in the second appeal upon smilar facts. The first decision is 
the law of the case, and must control its disposition, but the rule 
does not apply to expressions of opmion or matters, the disposition 
of which was not required for the decision. " 



62 NORTHERN PACIFIC RAILROAD CO. VS. 

73 Here was an opinion in the same case and undoubtedly 
the court of original jurisdiction felt bound by it, but the court in 

substance held, that it was error to follow it in that particular, 
wherein the supreme court expressed an opinion upon a point not 
required for the decision. If the court had found that the agree- 
ment for the relinquishment of the Indian title mentioned in the 
case of Butts vs. The Northern Pacific R. R. Co. , went into effect 
when ths Indians consented to the modified agreement then there 
would have been a necessity for deciding the point at issue. 

To suppose a fact to e.xist which a court has held was not a fact 
with the view of expressing a legal opinion upon it does not seem to 
me to be required for the decision of a case. 

In the case of St. Paul &■ Pacfiic R. R. Co. vs. The Northern 
Pacific R. R. Co., 139 U. S. , i, claimed by plaintiff to support the 
case of Buttz vs. The Northern Pacific R. R. Co. , supra, the 
supreme court on page 17 of the opinion said in speaking of the 
grant to plaintiff: 

"The new rights were to vest with the release of the old rights. 
The transfer was to be mutual and simultaneous. There was there- 
fore no operative grant until there was an effective release and 
whichever date betaken, whether December 13 or 19. it was sub- 
sequent to the definite location of the Northern Pacific Railroad 
Company in Minnesota. A map of that location approved by the 
secretary of the interior, was filed as stated above in the office of the 
commissioner of the general land office on the 21st of the previous 
November. No grant was in existence of any lands to any other 
company which are claimed by the plaintiff in this suit at the time 
of the definite location of its route." 

Again: "But independently of this conclusion we are of 
opinion that the exception in the act makmg the grant to the 

74 Northern Pacific Railroad Company was not intended to 
cover other grants for the construction of roads of a similar 

character, for this would be to embody a provision which would 
often be repugnant to and defeat the grant itself." 

It would seem that the above rulings were sufficient to have dis- 
posed of that case, and that there was no occasion for deciding the 
point at issue in this case upon the construction of said section six. 



JUNIUS G. SANDERS, ET AL. 63 

But in addition thereto the court said: "The Northern Pacific act 
directed that the president, should cause the lands to be surveyed 
forty miles in width on both sides of the entire line of the road after 
the general route should be lixed, and provided that the odd sec- 
tions granted should not be liable to sale, entry or pre-emption, be- 
fore or after they were surveyed, except by the company. They 
were therefore excepted by that legislation from grants independent- 
ly of the withdrawal by the secretary of the interior. His action in 
formally announcing their withdrawl was only giving publicity to 
what the law itself declared." 

Now, it should be observed that the court was considering in this 
case two acts of congress, making grants to two different railroad 
companies, to aid them m constructing their road. 

The language in said section six is: "And the odd sections of 
land hereby granted shall not be liable to sa/i, or ciitry.'^x pre-emption 
before or after such survey, except by said company." 

The term grant does not occur among these terms. The terms 
are, sale, eiifrv and pre-emption. The supreme court, in speaking 
of these terms in the case of Kansas Pacific Ry. Co. vs. Diinmcycr, 
113, U. S. 629, said: "In the terminology of the law concerning 
the disposition of the public lands of the United States each of these 
words has a distinct and well known meaning in regard to the mode 
of acquiring rights to these lands. This is plainl}- to be seen in the 
statutes we are construing. In the third section or granting 
75 clause there are excepted from the grant all lands which at 

the time the definite location of the road is fixed had been 
sold, reserved, or otherwise disposed of and to which a pre-emption 
or homestead claim had attached. Here sale, pre-emption and 
homestead claims are mentioned as three different modes of acquir- 
ing an interest in the public lands which is to be respected when 
the road became located, and the words are clearly used because 
they were thought to be necessary. But a sale for noney in hand 
by an entry made by the party buying is throughout the whole body 
of laws for disposing of the public lands understood to mean a dif- 
ferent thing from the establishment of a pre-emption or homestead 
right, where the party sets up a claim to a definite piece of land, 



64 NORTHERN PACIFIC RAILROAD CO. VS. 

and is bound to build on i-t, make fences, cultivate and reside on it 
for a period of time prescribed by law." 

Let us consider these terms sale, entry, and pre-emption. 

Sale is a transmutation of property, or a rij^ht from one man to 
another in consideration of a sum of money as opposed to barter, 
exchan,s^e and gifts. 

Rapalje and Lawrence Law dictionary. 

Benjamin on Sales, in considering the term sale, says of the ele- 
ment of price §2. It must be money paid or promised accordingly 
as the agreement may be for a cash or a credit sale. But if any 
other consideration than money be given it is not a sale. 

See also Chitty on Contracts, 373; Story on Contracts, §778. 
Tiedeman on Sales, §12. 

This point has been considered by the supreme court, in the case 
of Williainson vs. Bcny, 8 How. 495. 

In it the court said: 

"Upon the first of them relating to the premises having been 
parted with by Clark to De Grasse, upon a consideration other than 
cash, we remark that sale is a word of precise legal import both at 
law and in equity. It means at all times a contract be- 
76 tween two parties to give and to pass rights of property for 

money which the buyer pays or promises to pay to the seller 
for the thing bought and sold." 

In the Five Per Cent cs.ses, iio U. S. 471, the supreme court 
made a distinction between public lands disposed of in satisfaction 
of military land warrants, and those sold for money, and said: "A 
sale in the ordinary sense of the word is a transfer of property for 
a fixed price in money or its equivalent." 

If we turn to the statutes of the United States, we find special 
provisions for the sale of public lands. 

See Revised Stat, of U. S. from Sec. 2353 to Sec. 2379. 

There are also provisions for the sale of mineral lands. But no 
where is there any definition of the term sale which would make it 
include a grant of land to a railroad company in aid of the construc- 
tion of its road whether we consider the term as used at common 
law or in the statute. 

The supreme court in the case of C/io/nn/ vs. Pope, 12 Wheaton, 



JUNIUS G. SANDERS, ET AL. 65 

586, defined the term entry as used in the statutes of the United 
States, and upon this point said: 

" The term entry as aplied to appropriations of lands was probably 
borrowed from the state of Virginia, in which we find it used in 
that sense at a very remote period. Many cases will be found in 
the reports of the decisions of this court in which the title to west- 
ern lands were drawn in question which will show how familiarly 
and generally the term is used by courts and bar. Its sense in 
the legal nomenclature of this country is now as fixed and definite 
as that of many terms borrowed from the common law. It means 
that act by which an individual acquires an inceptive right to a por- 
tion of the unappropriated soil of the country by filing his claim in 
the office of an officer known in the legislation of several slates by 
the epithet of an entry-taker, and corresponds very much in his 
functions with the register of land offices under the acts of the 

United States. 
J-] In the natural progress of language the term has been in- 

troduced into the laws of the United States; and by refer- 
ence to those laws we think the meaning of the term will be found 
to be distinctly confined to the appropriation of lands under the 
laws of the United States at private sale." 

With this definition of this term it would be difficult to maintain, 
that a grant to a railroad comipany in aid of the construction of its 
road could be embraced in the term entry. 

> The term pre-emption is well understood, and is sufficiently de- 
fined in the provisions of the Revised Statutes of the United States, 
from section 2257 to 2288. It certainly does not cover a grant to 
a railroad company such as we are considering. It is hardly to be 
presumed that the supreme court intended in the case under consid- 
eration to give a new definition to terms which have long been in use 
in the statutes of the United States and to reverse decisions of its own 
which have defined these terms. The term grant not being in- 
cluded in the terms sale, entry or pre-emption, any construction of 
the same when the court was considering only the term grant as 
applied to the aid in land given to a railroad company could not 
have been essential to the decision of the case at issue and hence 
not controlling authority binding upon other courts. With the 



66 NORTHERN PACIFIC RAILROAD CO. VS. 

highest respect for the supreme court and with a strong disposition 
to follow where its beacon of legal light indicates, I cannot but feel 
that it has not fully considered the point under discussion and that 
the construction of the clause in section six "And the odd sections 
of land hereby granted shall not be liable to sale or entry or pre- 
emption before they are surveyed by the said company," indicated 
by it is not in accordance with the rules frequently expressed by it 
for the construction of legislative grants of the character made to 
plaintiff. The point I suggested in the former opinion in consider- 
ing the case of Buttzv. The Nortlicrn Pacific R. R. Co., supra, that 
the supreme court intimated that the law required of the plaintiff 
the filing of a map of its general route when there was no 
78 such provision of the statute in the act making the grant to 

plaintiff was discussed at some length upon the rehearing in 
this case. And it was urged that the filing of this map was one of 
the acts performed by plaintiff in fixing its route, and that the terms 
fixing a route implied the hling of such a map with the secretary of 
the interior. But the case of Bitttz vs. TJic Nortlicrn Pacific R. R. 
Co., supra, does not so say. It saj's: "The general route may be 
considered as fixed when its general course and direction are deter- 
mined after an actual examination of the country or from knowl- 
ege of it and is designated by a line on a map showing the general 
features of the adjacent country and the places through or by which 
it shall pass." 

In this there is nothing said about the filing the map with the 
secretar}' of the interior, as in an act required in fi.xing the general 
route of plaintiff's road. 

But subsequently the court says: "When the general route of the 
road is thus fixed in good faith and information thereof given to the 
land department by filing the map thereof with the commissioner of 
the general land office or secretary of the interior, the law with- 
draws from sale or pre-emption the odd sections to the extent of 
forty miles on each side." 

Here there is a plain distinction made between fixing the general 
route and the filing of a map with either of said officers. And the 
object of filing this map is stated, namely, the giving of the infor- 
mation that the general route has been fixed. 



JUNIUS G. SANDERS, ET AL. 67 

Without doubt information should have been fjiven to the presi- 
dent of the fixing of the general route of plaintiff's road before he 
could be required to cause the land to be surveyed on both sides of 
the same. But I deny that there is any warrant for the claim that 
the law required that this map of the general route of plaintiff's road 
should be filed with the commissioner of the general land 
79 office, or the secretary of the interior, and that then the law 

stepped in and withdrew from sale, entry, or pre-emption the 
odd sections of land within forty miles of the line of this general 
route upon the happening of this event. One of the established 
rules for the construction of a statute is by the statute itself. 

In the 3rd section of the act in which is found the grant to plaint- 
iff there is made a clear distinction between the fixing of the 
definite route of plaintiff's road and the filing of a plat thereof with 
the commissioner of the general land office. When the definite 
route is fixed and a plat thereof filed in the office of the commis- 
sioner of the general land office the grant to plaintiff received pre- 
cision, and attaches to the odd sections granted as of the date of the 
grant. Can it be that there is one mode of fixing the definite route 
of plaintiff's road, and another in fixing of its general route.-' Can 
it be that in fixing the definite route of plaintiff's road a map was 
required to be filed with the secretary of the interior or the commis- 
sioner of the general land office, and then another map or plat of 
this fixed route with a view of establishing and giving precision to 
the grant to plaintiff.'' 

But whatever be required in fixing the general route of plaintiff's 
road the statute does not give the effect to the act of filing a map 
of this route claimed for it. It would have no more force than as 
one of the acts fixing this route. 

But it is urged that the land department of the government has 
given a construction to section six and that this is binding. The 
supreme court in the case of United States vs. Pugh, 99 U. S. 265, 
said upon this point: "The rule which gives determining weight to 
ccntemporaneous construction put upon a statute by those charged 
with its execution applies only in cases of ambiguity and doubt." 
Citing: Edwards, Lessee vs. Darby, 12, Wheaton, 206; Smythe vs. 
Fiskc, 23 Wall. 374, U. S. vs. Moore, 95 U. S., 760. 



68 NORTHERN PACIFIC RAILROAD CO. VS. 

80 And in the case of the United States vs. GraJimn, 1 10 U. 
S. 219, the supreme court says: "Such being the case it mat- 
ters not what the practice of the departments may have been or Iioiu 
long continued for it can only be resorted to in aid of interpretation, 
and it is not allowed to interpret what has no need of interpretation. 
If there were ambiguity or doubt, then such a practice begun so 
early and continued so long would be in the highest degree persua- 
sive if not absolutely controlling in its effect. But with language 
clear and precise, and with its meaning evident, there is no room 
for construction, and consequently no need of anything to give it 
aid." 

The language in the 6th section in the act making the land grant 
to plaintiff, for consideration is, "And the odd sections of land here- 
by granted shall not be liable to sale, or entry or pre-emption before 
or after they are surveyed, except by said company as provided in 
this act." 

The point about which discussion has centered in this case, is 
what is meant by the words "odd sections of land hereby granted" 
turning to section 3rd, of said act, we find what are the odd sections 
of land granted to plaintiff. 

It provides "There be and hereby is granted to the Northern Pac- 
ific Railroad Company, its successors and assigns, for the purpose of 
aiding in the construction of said railroad and telegraph line, to the 
Pacific Coast and to secure the safe and speedy transportation of 
the mails, troops, munitions of wars and public stores over the route 
of the line of said railway every alternate section of public land, not 
mineral, designated by odd numbers to the amount of twenty alter- 
nate sections per mile on each side of said railroad line as said com- 
pany may adopt through the territories of the United States, and 
ten alternate sections of land per mile on each side of said railroad 
whenever it passes through any state, and whenever on the 

81 line thereof the United States have full title, not reserved, 
sold, granted, or otherwise appropriated, and free from pre- 
emption or other claims or rights at the time the line of said road is 
definitely fixed and a plat thereof filed in the office of the commissioner 
of the general land office. " 

Does not this define what are the odd sections of land granted .' 



JUNIUS G. SANDERS, ET AL. 69 

And what better means of determining the meaning of words in an 
act than the act itself, when it defines the meaning thereof ? The 
supreme court in the case of Ncnl vs. Scruggs, 95 U. S. 704, said 
in speaking of a clause in an act : "A passage will be best inter- 
preted by reference to that which precedes and follows it." 

In the case of Kohlstadt vs. Murphy, 96 U. S. 153, the supreme 
court again said : 

In the exposition of a statute the established rule is, that the in- 
tention of the law-maker is to be deduced from a view of the whole 
statute, and every material part of the same." 

In Endlich on the Interpretation of Statutes will be found the 
same rules expressed for the interpretation of statutes. 

There was something said in the argument in this case about the 
use of the term odd sections, and it was urged that all that was 
necessary for congress to have said was "the lands hereby granted" 
if it desired to specify in section six the lands described in section 
three. The most that can be said in regard to the use of these 
words is, that they make the section unnecessarily particular in the 
description of the land to be affected. I have yet to learn, how- 
ever, that unnecessar)' particularity of description of premises in a 
statute or deed, made either ambiguous. It should be at all times 
observed that the terms ' 'odd sections of land hereby granted" were 
used only in the attempt to describe the lands which were reserved 
from sale, entry, or pre-emption. That there seems to have been 
considerable dispute about the meaning of this section seems true. 
But a dispute about the construction of a statute does not 
82 always make an ambiguity, and not always a legal doubt as 

to its meaning. But when there is presented an ambiguity 
or legal doubt in considering the meaning of a statute those called 
upon to construe are not empowered to discard all rules established 
by the jurisprudence which is our birth right, and proceed to estab- 
lish a new and a different statute and one not warranted by the lan- 
guage used. In this case there is a construction contended for 
which has the effect to obliterate from the statute the words "land 
hereby granted" and to substitute therefor "non-mineral land with- 
in forty miles of each side of the general route of plaintiff's road as 
it may adopt through the territories of the United States, and ten 



JO NORTHERN PACIFIC RAILROAD CO. VS. 

alternate sections of land per mile on each side of said general route 
whenever it passes through any state, and whenever on the line 
thereof the United States have a full title not reserved, sold, grant- 
ed or otherwise appropriated and free from pre-emption or other 
claims or rights at the time the general route of said road was 
fixed." 

I sought to show in the former opinion I wrote in this case that 
to make that clause in that section read in that waj^ would result in 
reserving from sale, entry and pre-emption odd sections of land not 
granted, and leaving without said reservations odd sections of land 
which were granted in said section three as there was no provision 
that the fixed route of the road should be the same even substan- 
tially as the general route thereof, and that as a matter of fact in 
many places it was not. 

I furthermore sought to show that as the grant to plaintiff was in 
the nature of a float until the definite route of the road was fixed 
and a plat thereof filed in the office of the commissioner of the gen- 
eral land office "the odd sections of land granted" to plaintiff could 
not be reserved from sale, entry or pre-emption because until then 
they were not identified ; for how could lands be reserved from sale, 
entry or preemption until known and capable of description. 

83 I might have added that the construction of section six 
claimed by plaintiff left without force some of the exception 

to the grant in section three, as far as were concerned the lands within 
the limits of the general route which correspond with those within the 
limits of the fixed route because in effect under that construction 
they received their status when the general route was fixed. Non- 
mineral public lands not then sold and which were free from pre- 
emption or other claims or rights could not afterward be sold or 
made subject to any entry or pre-emption claim or right. The 

84 effect of this would be that the grant to plaintiff would as a 
matter of fact attach to all such lands as were within the 

limits of its grant as were not sold or subject to sale, entry or pre- 
emption right at the time the general route of plaintiff's road be- 
came fixed. And in construing this part of section three which 
reads as follows: "And whenever prior to said time and [aiij^ of said 
sections or parts of sections shall have been granted, sold, reserved. 



JUNIUS G. SANDERS, ET AL. 7 I 

occupied by homestead settlers or pre-empted or otherwise dispos- 
ed of, other lands shall sliall be selected by said company in lieu 
thereof under the directions of the secretary of the interior in alter- 
nate sections, and designated by odd numbers not more than ten 
miles beyond the limits of said alternate sections." The words 
"lawfully." must be inserted before at least each one of the words 
"sold," "occupied by homestead settlers and pre-empted," for the 
said time mentioned in said clause refers to the time when the route 
of the road should be definitely fixed and the plat thereof filed with 
the commissioner of the general land office. Surely the language of 
Patterson, J., in Rex v. Burrcll I2 Aid. & E. 465 cited in the pre- 
vious opinion, recurs with considered force when considering this 
question. 

"I see the necessity of not importing into statutes, words which are 
not found there. Such a mode of interpretation only gives occasion 
to endless difficulty." 

It was brought to the attention of the court that in an opinion given 
by Ex-Assistant Attorney General Smith upon the construction 
of said section sixth, he had held that some force should be 
given to the clause therein under discussion. That 
after the fixed route of the road was made 
85 and the plat thereof duly filed, the law conveyed the odd 

sections named in section three and this would leave that 
clause no function to perform if it applied to the lands described in 
said section. If this were so it would not authorize that able of- 
ficer to construct a new statute and to disregard the established 
rules for constructing such a statute as this, and to ignore the mean- 
ing of words well known and which were defined in the act itself. 
There is nothing unusual in finding in a statute words which might 
have been omitted. 

Plaintiff was not to have a patent for the lands granted until each 
twenty-five miles of the road it might construct should be accepted 
or determined to be in accordance with the provisions of the act 
making the grant. When the land grant to plaintiff received pre- 
cision by the establishing of the fixed route of its road, congress 
said then it shall not be subject to the general laws provided for the 
disposal of public lands such as sale, entry or pre-emption. This 



72 NORTHERN PACIFIC RAILROAD CO. VS. 

would prevent any cloud being placed upon the lands granted by 
the officers of the land department. I am led to this conclusion by 
what follows in that section. Evidently congress had its mind di- 
rected to the general laws for the disposal of public lands when 
considering that section. Commencing at the clause under discus- 
sion and the section reads "And the odd sections of land hereby 
granted shall not be liable to sale or entry or pre-emption be- 
fore or after they are surveyed except by said company 
as provided by this act; but the provisions of An Act of Sep- 
tember, eighteen hundred and fortj'-one granting pre-emption 

86 rights and all acts amendators thereof and of the act entitled 
"An Act to secure homesteads to actual settlers on the pub- 
lic domain approved May 20, eighteen hundred and sixty-two," 
"shall be, and the same are hereby extended to all other lands on 
the line of said road when surveyed excepting those granted to said 
company." 

We have here the words " line of said road" not the line of the 
general route of said road. 

If Ex-Assistant Attorney General Smith had found upon exami- 
nation that without this last named clause in that section, the gen- 
eral laws granting pre-emption rights and homestead rights, applied 
to most of the lands not granted to plaintiff in the line of its road 
as soon as surveyed, I do not know what course he would have 
taken in his endeavor to find some function for that part of that 
section to perform and what new meaning he would found in the 
language thereof. The truth is that two statutes are often found 
covering the same ground. It is said that the object of the clause 
under consideration was to preserve the land after the location of 
the general route for the benefit of plaintiff, so that its grant might 
attach thereto. I know of no means of determining what the ob- 
ject of. a statute is other than by a reference to the language used; 
and I do not find this object manifested in that clause. As I have 
shown, I think sale, entry, and pre-emption are terms which apply 
to only particular modes of disposing of the public domain. But 
in the limitations upon plaintiff's grant we have the terms "granted, 
reserved and otherwise appropriated." 

87 It is singular if Congress intended to preserve these lands 



JITNIUS G. SANDERS, KT AL. /^ 

from the time of the fixing of the general route of plaintifi's 
road, tliat that body should have provided for preserving only from 
the disposal to those who would have to settle upon the same, make 
homes and develop the country, and left them open to other modes 
of disfiosal. 

It was claimed that congress had approved of the decisions of the 
supreme court which had construed plaintiffs' grant by the use of 
this language in an act approved 3d (March) 1887, 24 Stats, 556. 

"That the secretary of the interior, be, and is hereby authorized 
tri immediately adjust in accordance with the decisions of the su- 
preme court each of the railroad land grants made by congress to 
aid in the construction of railroads, and heretofore unadjusted." 

It would seem that if congress meant that all land grants made to 
aid in the construction of railroads should be made to conform to 
the decisions of the supreme court as to their extent, it should have 
so declared directly itself, and not have passed a statute authorizing 
the secretary of the interior to so declare. It would seem, in my 
judgment that there were some disputes about these grants, and con- 
gress authorized the secretary of the interi.or to settle them, and in so 
domg to be guided by the decisions of the supreme court bearing upon 
the subject in dispute. What those disputes were does not appear 
in the statute. The power to settle a dispute, and to make a land 
grant conform to a decision of a court, I apprehend are not the 

same, but different things. 
88 And with the view I have of the statute it will not bear 

the construction contended for by plaintiff. Finally, plaint- 
iff urges, that when one circuit court of the United States decides a 
point, that all the others should conform their views to this decis- 
ion, until the matter is settled by the rulings of the supreme court. 
But this is not the rule which prevails in the circuit courts of the 
United States. The very decision, that counsel for plaintiff would have 
me consider as binding — Dcmiy v. Dodson, 13 Sawyer, 68 is an il- 
lustration showing that the rule contended for does not prevail. 
The very distinguished judge who delivered that opinion refused to 
be governed by a former decision of the very same court rendered 
by the experienced and able Judge Deady upon a material point in 
regard to the nature of plaintiff's title to the land granted it. A 



74 NORTHERN PACIFIC RAILROAD CO. VS. 

United States circuit court undoubtedly always, with reluctance 
will assert its right to disagree with the decision of another circuit 
court, even when satisfied that it is erroneous. I am aware that in 
refusing to concur with the opinions of many able jurists expressed 
upon the construction of said section six, I, justly, perhaps, subject 
myself to the charge of presumption; I trust not, however, to the 
charge of having arrayed myself with the growing army of cranks 
who find so congenial a home in our Republican society, for I have 
no desire to be other than conservative, and to adhere to the well 
established rules for construing a statute of the class under consid- 
eration. 
89 In not one of the decisions referred to as supporting the 

views of plaintiff is there any discussions of the terms under 
consideration used in said section six, and they shown to have the 
force claimed. In none of them a reference to the established rules 
for construing such statutes. In the Bible there is the command 
" Thou shalt not follow a multitude to do evil." Perhaps, it is 
well to have some one ask of the route we are following in the con- 
struction of statutes making legislative grants of the public domain 
to the end that we may learn whether or not in such matters the 
old land-marks are to be discarded and new ones observed. 

For the above reasons, I ovder[i-d]; that the previous judgment of 
this court should stand and remain in force. 

Filed Sept, 8th. 1891. 

GEO. W. SPROULE, Clerk. 



90 United States of America, ( 
District of Montana, | 



ss. 



Circuit Court of the United States, Ninth Circuit, District of 

Montana. 

I, George W. Sproule, clerk of said circuit court, do hereby cer- 
tify and return to the honorable the United States Circuit Court of 
Appeals for the Ninth Circuit, that the foregoing volume consisting 
of 90 pages numbered consecutively from i to 90, inclusive, is a 
true and complete transcript of the records, process, pleadings, or- 
ders, judgment and other proceedings in said cause and of the whole 



JUNIUS G. SANDERS, ET AL. 75 

thereof as appears froiii the original records and files of said court; 
and I do further certify and return that I have annexed to said 
transcript and included within said paging the original citation, 
writ of error and opinions rendered in said cause and also proof of 
service of said citation and writ of error. 

In witness whereof I have hereunto set my hand and affixed the 
seal of said court, at Helena, in the District of Montana, this 8th 
day of September, in the year of our Lord, one thousand eight hun- 
dred and ninety-one, and of the Independence of the United States 
the one hundred and fifteenth. 

[SEAL.] GEORGE W. SPROULE, Clerk. 



lloited States 'CircDit Court 
of 



FOR THE NINTH CIRCUIT. 
October Term. 1891. 



Northern Pacific Railroad Com- 
pany, 

Plaintiff in Error, 



Junius G. Sanders, et al., 

Defendants in Error. 

' NO. 7. 

Statement, Specification of Errors, 
and Brief of Plaintiff in Error. 



Fred. M. Dudley, 
Counsel for Plaintiff in Error. 



/--^'r ,^4^^ 



United States Circuit Court 
of Appeals 

FOR THE NINTH CIRCUIT. 



Northern Pacific Railroad Company, 

Plaintiff in Error, 
vs. 

Junius G. Sanders, Wilbur E. Sanders, James U. 
Sanders and Sarepta Sanders, 

Defendants in Error. 



BRIEF OF PLAINTIFF IN ERROR. 



STATEMENT OF CASE. 

This action is in the nature of ejectment to recover 
possession of section 21, in township 10 north, range 
3 west, P. M., in Lewis and Clarke county, Montana. 

The plaintiff below, the plaintiff in error here, 
asserts title to the land under the act of congress ap- 
proved July 2, 1864, entitled " An act granting lands 
to aid in the construction of a railroad and telegraph 



line from Lake Superior to Puget's Sound on the Pac- 
ific Coast, by the northern route." 13 Stat. 365. 

By the third section of that act, a grant of lands 
was made to plaintiff, as follows: 

'•That there be, and hereby is, granted to the 
'Northern Pacific Railroad Company,' its successors 
and assigns, for the purpose of aiding in the construc- 
tion of said railroad and telegraph line to the Pacific 
coast, and to secnre the safe and speedy transportation 
of the mails, troops, munitions of war, and public 
stores over the route of said line of railway, every 
alternate section of public land, not mineral, desig- 
nated by odd numbers, to the amount of twenty al- 
ternate sections per mile on each side of said railroad 
line, as said company may adopt, through the terri- 
tories of the United States, and ten alternate sections 
of land per mile on each side of said railroad when- 
ever it passes through any state, and whenever on the 
line thereof the United States have full title, not re- 
served, sold, granted, or otherwise appropriated, and 
free from pre-emption, or other claims or rights, at the 
time the line of said road is definitely fixed, and a 
plat thereof filed in the office of the commissioner of 
the general land office; and whenever, prior to said 
time, any of said sections or parts of sections shall 
have been granted, sold, reserved, occupied by home- 
stead settlers, or pre-empted, or otherwise disposed 
of, other lands shall be selected bj' said company in 
lieu thereof, under the direction of the secretary of the 
interior, in alternate sections, and designated by odd 
numbers, not more than ten miles beyond the limits 
of said alternate sections: provided, that if said route 
shall be found upon the line of any other railroad 
route to aid in the construction of which lands have 
been heretofore granted by the United States, as far 
as the routes are upon the same general line, the 
amount of land heretofore granted shall be deducted 
from the amount granted b)' this act: provided further, 
that the railroad company receiving the previous grant 
of land may assign their interest to said 'Northern Paci- 
fic Railroad Company,' or may consolidate, confeder- 
ate, and associate with said company upon the terms 



named in the first section of this act: provided fiirtJur, 
that all mineral lands be, anci the same are hereby, 
excluded from the operations of this act, and in lieu 
thereof a like quantity of unoccupied and unappropri- 
ated agricultural lands, in odd numbered sections, 
nearest to the line of said road may be selected as 
above provided: and provided fjirther, that the word 
'mineral' when it occurs in this act, shall not be held 
to include iron or coal: and provided fiirtlier, that no 
money shall be drawn from the treasury of the United 
States to aid in the construction of the said 'Northern 
Pacific Railroad.' " 

By the sixth section it was enacted: 

"That the president of the United States shall 
cause the lands to be surveyed for forty miles in width 
on both sides of the entire line of said road, after the 
general route shall be fixed, and as fast as may be re- 
quired by the construction of said railroad; and the 
odd sections of land hereby granted shall not be liable 
to sale, or entry, or pre-emption before or after they 
are surveyed, except by Said company, as provided by 
this act; but the provisions of the act of September, 
eighteen hundred and forty-one, granting pre-emption 
rights, and the acts amendatory thereof, and of the 
act entitled ' An act to secure homesteads to actual 
settlers on the. public domain,' approved May twenty, 
eighteen hundred and sixty-two, shall be, and the 
same are hereby, extended to all other lands on the 
line of said road, when surveyed, excepting those 
hereby granted to said company. And the reserved 
alternate sections shall not be sold by the government 
at a price less than two dollars and fifty cents per acre 
when offered for sale." 

The complaint alleges the corporate existence of 
plaintiff; its acceptance of the terms, conditions and 
impositions of the act of July 2, 1864; that the gen- 
eral route of its road extending through Montana was 
duly fixed February 21, 1872: that the land in contro- 
versy was on and within 40 miles of such general route; 
and was, on February 21, 1872, non-mineral, public 



land to which the United States had full title, not re- 
served, sold, granted, or otherwise appropriated, and 
free from pre-emption or other claims or rights. It 
further alleges that July 6, 1882, plaintiff definitely 
fixed the line of its railroad extending opposite to and 
past the land in controversy, and filed a plat thereof 
in the office of the commissioner of the general land 
office; that said land was on and within 40 miles of 
such line of definite location; that this land was at 
that time public land, to which the United States had 
full title, not reserved, sold, granted, or otherwise 
appropriated, and free from pre-emption or other 
claims or rights; and is not mineral land: that there- 
after the road was duly constructed, approved by the 
commissioners appointed for the examination of the 
same, and accepted by the .president. And that in 
May, 1888, the defendants entered upon the land, 
ousted the plaintiff therefrom, and have since retained 
the possession thereof. The value of the land is al- 
leged to be over ten thousand dollars. 

The answer admits the allegations with reference 
to fixing the general route, definite location, construc- 
tion and acceptance of the railroad and telegraph 
line. It alleges that the plaintiff filed a map of the 
general route of the road in the office of the com- 
missioner of the general land office, Februar)' 
21, 1872, and that the commissioner, acting 
under the directions of the secretary of the interior, 
immediately ordered the odd numbered sections of 
public land forty miles in width on each side of the 
line of such general route to be reserved from sale, 
pre-emption, homestead or other disposition, except 



5 

by the railroad company. It admits that at the time 
the general route was fixed, the land in question was 
public land to which the United States had full title, 
not reserved, sold, granted, or otherwise appropriat- 
ed, and was free from pre-emption or other claims or 
rights, and was on and within forty miles of such gen- 
eral route. It admits that defendants have entered 
upon said premises and are now in the possession 
thereof; and that the land is within the limits of the 
grant as defined by fixing the definite location of the 
road July 6. 1882; and then denies the allegation of the 
complaint that the said land was public land to which 
the United States had full title and was free from pre- 
emption or other claims or rights, not reserved, sold, 
granted, or otherwise appropriated, at the time the 
route of plaintiff's road was definitely fixed and a plat 
.thereof filed in the office of the commissioner of the 
general land office by setting up affirmatively: (i) 
that on 1 he 2nd day of August, 1880, Theodore H. 
Kleinschmidt, Edward W. Knight, and six others 
located under the mining laws of the United States 
and the laws of the territory of Montana, as eight dis- 
tinct mining claims, the northeast quarter of said sec- 
tion 21: (2) that on the 12th day of August, 1880, 
George P. Reeves, Helen H. Reeves, and six 
others located under the mining laws of the United 
States and the laws of the territory of Montana, as 
eight distinct mining claims, the northwest quarter of 
said section 21 ; (3) that on the 19th day of February. 
1 88 1, Theodore H. Kleinschmidt, Henry M. Parchen 
and six others located under the mining laws of the 
United States and the laws of the territory of 



Montana, as ei^ht separate mining claims, the south- 
west quarter of said section 21 ; (4) that on the 13th 
day of March, 1880, Cornehus Hedges, Thomas A. H. 
Hay, and six others located according to the mining 
laws of the United States and the laws of the territory 
of Montana, as eight separate mining claims, the 
southeast quarter of said section 21 ; that each of the 
locators above named was a citizen of the United 
States; that afterward the above named parties made 
application to patent said lands as mineral in the 
United States land office at Helena, Mont., and for 
this purpose filed all the necessary affidavits and 
notices and proofs required in such cases; that after- 
wards plaintiff in this case protested against the issu- 
ing of patents to said parties on the ground that the 
same was non-mineral in character, and not subject 
to be patented as mineral land; that on account of this, 
protest a contest was inaugurated in said land office 
as to the right of said parties to a patent for said 
premises; that said contest existed and was pending 
on the 6th day of July, 1882, when the line of plaint- 
iff's road was definitely fixed opposite to said land, 
and a plat thereof filed in the office of the com- 
missioner of the general land office. 

To this answer plaintiff demurred upon the ground 
that it did not state facts sufficient to constitute a de- 
fense. The court overruled this demurrer; and plaint- 
iff declining to plead further, judgment in favor of de- 
fendants was entered. To correct this judgment this 
writ of error was sued out. 

Tfie question presented by the record is whether a 
mining location made in the forms prescribed by law. 



upon an odd numbered section of land within the 
limits of the Northern Pacific Railroad Company's 
land grant, and an application made by the locators 
thereof for a patent therefor, and filing apparent 
proofs of location, mineral character, and work accom- 
panying such application in the form prescribed by 
law and the rules of the land department; and the 
pendency of a contest in regard to the mineral 
character of such land before the United States dis- 
trict land ofBce at the time the line of the road is de- 
finitely fixed, such location, application and contest 
being initiated years after the general route of the 
road is fixed, and after the land is ordered withdrawn 
from entry by the department, constitutes such a 
claim as will take the land out of the category of 
lands "free from pre-emption or other claims or 
rights," and prevent it from passing under the act, al- 
though such land was and is non-mineral in character, 
and hence not subject to be located or patented as 
mineral land. In determining this question we may 
consider it from three standpoints: (i.) Is a mineral 
location or entry within the contemplation of the third 
section of the act excluding lands from the grant that 
were reserved, sold, granted or otherwise appropriated, 
or which were not free from pre-emption or other 
claims or rights? (2.) Is a mineral location or entry 
upon non-mineral land void and a nullity, and, there- 
fore, insufficient to exclude land from the grant? (3.) 
Were these mineral locations and attempted entries 
void ad initio because made upon non-mineral land 
after the general route of plaintiff's road was fixed; 



s 

and therefore insufBcient to exclude land from the 
grant? 



SPECIFICATION OF ERRORS. 

The plaintiff in error hereby assigns the following 
as errors committed by the court below in the deter- 
mination of this action and the rendition of judgment 
therein: 

I. 

The said court held that the odd-numbered sec- 
tions of non-mineral public land, to which the 
United States had full title, not reserved, sold, grant- 
ed, or otherwise appropriated, and which were free 
from pre-emption or other claims or rights when the 
general route of the Northern Pacific Railroad was 
fixed, and which were on and within forty miles of 
the line of such general route, were not, whether sur- 
veyed or unsurveyed, by the fixing of such general 
route, withdrawn from sale, pre-emption or entry, 
except by said railroad company. 
II. 

The said court held that section twenty-one (21) 
township ten fioj north, of range three (3) west, P. 
M. Montana, was, after said Northern Pacific Railroad 
Company fixed the general route of its road opposite 
thereto and within forty miles thereof, to-wit. : Feb- 
ruary 2ist, 1872, subject to sale, pre-emption and en- 
try by parties other than said Northern Pacific Rail- 
road Company. 

III. 

The said court held that the mineral locations, 



claim, and applications for patent for the Northeast 
quarter (N.E. j) of section twenty-one (21) township 
ten (10) north, of range three (3) west, P. M. Mon- 
tana, by Theodore H. Kleinschmidt, Edward W. 
Knight, Henry M. Parchen, Charles K. Wells, George 
P. Reeves, David H. Cuthbert, Cornelius Hedges 
and Stephen E. Atkinson, for the northwest quarter 
(N.W. ^) of said section by George P. Reeves, Helen 
H. Reeves, Laura C. Ballou, John W. Eddy, Ev- 
elyn M. Eddy, Edward W. Knight, Theodosia M. 
Knight and Anna Natolia King, for the southwest 
quarter (S. W. |) of said section by Theodore H. Klein- 
schmidt, Henry M. Parchen, David H. Cuthbert, 
Stephen A. Atkinson, Lucius C. Rosecrans, Emma 
M. Parchen, Mary M. Kleinschmidt, and Anna E. 
Cuthbert, for the southeast quarter (S.E.j) of said 
section by Cornelius Hedges, Thomas A. H. Hay, 
Mary L. Guthrie, Patrick Quinn, Louis A. Walker, 
William D.Wheeler, Edna L. Hedges, George E. Car- 
penter, Russell B. Harrison, as set forth in the an- 
swer to the amended complaint, herein, and the 
pendency of the contest, or contests, before the 
United States district land office, between said parties, 
and the said Northern Pacific Railroad Company, as 
to the quality of the soil of said section, at the time 
the line of the said Northern Pacific Railroad oppo- 
site to and within forty miles of said section twenty- 
one (21) was definitely fixed, and a plat thereof filed 
in the office of the commissioner of the general land 
office, to-wit: July 6th. 1882, excluded said lands 
from the description of public lands to which the 
United States had full title, not reserved, sold, grant- 



ed, or otherwise appropriated, and free from pre- 
emption or other claims or rights, and operated to 
exclude said land from the grant to said Northern 
Pacific Railroad Company by the act of congress ap- 
proved July 2nd, 1864. 

IV. 

The said court held that the mineral locations, 
claims and applications for patent for the northeast 
quarter (N.E. j) of said section twenty-one (21) town- 
ship ten (10), north of range three (3) west, P. M. 
Montana, by Theodore Kleinschmidt, Edward W. 
Knight, Henry M. Parchen. Charles K. Wells, George 
P. Reeves, David H. Cuthbert, Cornelius Hedges and 
Stephen E. Atkinson, for the northwest quarter (N. 
W.j) of said section by George P. Reeves, Helen 
H. Reeves, Laura C. Ballou, John W. Eddy, 
Evelyn W. Eddy, Edward W. Knight, Theodosia M. 
Knight and Anna Natolia King; for the south- 
west quarter (S.W. j) of the said section by Theo- 
dore H. Kleinschmidt, Henry M. Parchen, David H. 
Cuthbert, Stephen Atkinson, Lucius J. Rosecrans, 
Emma M. Parchen, Mary M. Kleinschmidt and Anna 
E. Cuthbert; for the southeast quarter (S.E.|:) of 
said section by Cornelius Hedges, Thomas A. H. 
Hay, Mary L. Guthrie, Patrick Quinn, Louis A. 
Walker, William D. Wheeler, Edna L. Hedges, 
George E. Carpenter, Russell B. Harrison, as set 
forth in the answer to the amended complaint herein, 
were not null and void, and of no effect whatever. 
V. 

The said court held that section twenty-one (2 i), 
township ten (10) north, of range three (3) west, P. 



M. Montana, although non-mineral in character, was 
subject to a mineral location, claim or entry. 
VI. 

The said court held that the mineral location, 
claim and application for patent for said section 
twent}'-one (21), township ten (loj north, of range 
three (3) west, P. M., asset forth in the answer to 
the amended complaint herein, operated to reserve, 
grant or appropriate said land or cause the same to 
cease to be free from pre-emption or other claims or 
rights so as to exclude the same from the grant to the 
Northern Pacific Railroad Company. 
VII. 

The said ocurt failed and declined to hold that said 
Northern Pacific Railroad Company was the owner of 
and entitled to the possession of said section twenty- 
one (21), township ten (10) north, of range three (3) 
west, P. M. Montana. 

VIII. 

The said court held that said answer to the amend- 
ed complaint in the above entitled action states facts 
sufficient to constitute a defence or counter claim. 



BRIEF OF ARGUMENT. 
I. 

Is A MINERAL LOCATION OR ENTRY WITHIN THE CON- 
TEMPLATION OF THE THIRD SECTION OF THE ACT EX- 
CLUDING LANDS FROM THE GRANT THAT WERE RE- 
SERVED, SOLD, GRANTED OR OTHERWISE APPROPRIATED, 



OR WHICH WERE NOT FREE FROM PRE-EMPTION OR 
OTHER CLAIMS OR RIGHTS? 

The lands excluded from the grant to the Northern 
Pacific Railroad Company by the third section, may 
be divided into two classes: the first, those lands ex- 
cluded by reason of the character of the soil, to-wit: 
mineral lands; the second, those lands excluded from 
the grant by reason of the status of the title at the date 
the line of said road is definitely located and a plat 
thereof filed in the office of the commissioner of the 
general land office. 

At the date of the passage of the act granting lands 
to plaintiff, there was no act of congress, or any law, 
under which a right or claim could be initiated to 
mineral lands. They were reserved from the opera- 
tion of the pre-emption and homestead laws, and an 
entry made thereon under such laws was void, ah in- 
itio, as distinguished from voidable. 

Colorado Coal Co. v. U. S., 123 U. S 307 (L. 
ed. 189.) 

McLaii,s;/ili!! v. /"/. 5., 108 U. S 510 (L. ed. 
806.) 

Miillan v. U. S.. i 1 8 U. S. 271 (L. ed. 173.) 
An entry or claim attempted to be initialed upon 
such lands under the agricultural land laws would 
not, for this reason, have been sufficient to exclude 
lands from the grant to the company. 

H. &■ D. R. R. Co. v. Whitney, 132 U. S. 357 
CL. ed. 366.) 

Doolan v. Can; 125 U. S. 618 (L. cd. 847.) 

Denny v. Dodson, 32 Fed. 909. 

5. P. R. R. Co. v. Ortoii, 32 F. ed. 468, 479. 



13 

S. P. y?. R. Co. V. Wiggs & Netvmati, 43 Fed. 

333- 

Cong^ress, recognizing this fact, and desiring to ex- 
clude such lands from the grant, granted only lands 
non-mineral at the date of filing of the map of defin- 
ite location in the office of the commissioner of the 
general land office. The company, under its grant, 
did not, and could not acquire title to mineral lands, 
whatever the status of the title to such lands might 
be at the date the grant took effect, because they 
were excluded from the grant as mineral. 

The provisions of the third section, excluding lands 
by reason of the status of the title of such lands at the 
date the line of the road might be definitely fixed, had 
reference only to such lands as would have passed 
under the grant had the United States had full title, 
the land not being reserved, sold, granted, or other- 
wise appropriated, and free from pre-emption or other 
claims or rights at the time the line of said road was 
definitely fixed; that is, the non-mineral lands. The 
object of this second class of exceptions was to pro- 
tect the rights vested and existing in others. 
Ryan v. C. P. R. R. Co., 5 Saw. 264. 
Emslic V. Vo!///g, 24 Kas. 733. 

It was not the intention by this provision to pro- 
tect the mineral lands already fully protected from 
the grant by reason of the quality of the soil. Under 
the mineral laws, locations and entries are authorized 
upon mineral lands only. Such location and entry 
cannot be made upon non-mineral lands without 
fraud. Indeed, such entry, if permitted by the land 
officers, would be void as made without authority. 



14 

And we cannot believe that congress, having taken 
such pains to exclude all the mineral lands from the 
grant by reason of the quality of the soil, intended by 
the provision of the act excluding lands that were re- 
served, sold, granted, or otherwise appropriated, or 
not free from pre-emption or other claims or rights, 
to include entries or locations that could be made, 
only upon land already excluded from the grant; a 
provision whose only purpose could be to aid in the 
perpetration of fraud. 

II. 

Is A MINERAL LOCATION OR ENTRY UPON NON-MINEKAL 
LAND VOID AND A NULLITY, AND, THEREFORE. INSUFFI- 
CIENT TO EXCLUDE LANDS FROM THE GRANT? 

When in 1866, 1870 and 1872, the mineral laws 
were enacted, such laws authorized the acquisition of 
title, claims or rights to mineral lands only. Lands 
not mineral were excluded from their operation. Sec- 
tion 2319 R. S. authorizes the exploration and pur- 
chase of valuable mineral deposits, and the occupation 
and purchase of lands containing such deposits only. 

■Section 2320 R. S. provides that "no location of a 
mining claim shall be made until the discovery of the 
vein or lode within the limits of the located claim;" 
and section 2329 R. S. provides that "claims usually 
called 'placers,' including all forms of deposit, except 
veins of quartz, or other rock in place, shall be sub- 
ject to entry and patent, under like circumstance and 
conditions, and upon similar proceedings, as are pro- 
vided for vein or lode claims." 

These acts forbid the location, entry or patent un- 
der the mineral laws of non-mineral land, lands which 



15 

do not contain metal and upon which a discovery 
cannot be made. 

Upton V. Lni'kiu, 5 Mont. 600, s. c. Pac. 68. 

Hcntsivirth v. Butcher, 4 Mont. 367, s. c. i Pac. 

715- 
Gzvilliin V. Donncllan, 115 U. S. 45 (L. ed. 

349)- 
Steele V. Svieltiiis; Co.. 106 U. S. 447 (L. ed. 

227). 
Davis \. Wiebbold. 139 U. S. 519, 523. 

These acts as much reserve non-mineral lands from 
entry under the mineral laws, as the pre-emption or 
homestead acts reserve mineral land from entry under 
those laws. Lands non-mineral are, as to a mineral 
location or entry, which is not authorized until after 
the discovery of metal, reserved lands; and a location 
or entry made under the mineral laws upon agricul- 
tural lands is void and a nullity. It is an entry made 
without authority of law, as much so as a home- 
stead entry upon mineral land. And a patent issued 
upon such an entry is as void as a patent for mineral 
land issued under a grant excluding such lands from 
its operations. 

Miillan v, U. 5., 118 U. S. 271 (L. ed. 173). 

It is void as distinguished from voidable, as much 
so as if the land was reserved from any entry whatso- 
ever. An entry obtained by fraud upon land not re- 
served from such entry is voidable, and, although it 
may be annulled in action brought for that purpose, 
yet it vests in the grantee the title to the land en- 
tered until a decree is obtained cancelling it. 

U. S. v. Minor. 114 U. S., 243 (L. ed. 114). 



i6 

Colorado Coal Co. v. U. 5., 123 U. S. 307 (L. 

ed. 185). 
But if by such fraud an entrj' is obtained upon land 
reserved from such entrj? under the law, it is not sim- 
ply voidable for the fraud, but is void ah initio, be- 
cause made without authority of law, and neither the 
entry nor the patent obtained thereunder vest any 
title in the apparent grantee. 

Colorado Coal Co. \.U. S., 123 U. S. 307 (L. 

ed. 189). 
The land in controversy being, in fact, non-mineral, 
the location and attempted entry thereon by the min- 
eral applicants were necessarily made in fraud of the 
United States, and were void as distinguished from 
voidable, because the mining laws of the United 
States did not authorize such location or entry upon 
non-mineral land. An entry voidable only would be 
sufficient to exclude lands from the grant to the rail- 
road company, if it operated to reserve and appropri- 
ate the lands, so long as it remained uncancelled upon 
the records. 

H. & D. R. R. Co. V. Whitney, 132 U. S. 357 

(L. ed. 366.) 
But an entry absolutely null and void, as distin- 
guished from voidable, such as an entry allowed with- 
out authority of law, would not operate to reserve or 
appropriate the land entered, and the same would 
remain, notwithstanding such apparent entry, or even 
a patent issued thereon, public land; and would not 
be, by reason of such void entrj' or patent, excluded 
from a grant like that of the Northern Pacific Rail- 
road Company. 



17 

S. P. R. R. Co. V. Wiggs and Newman, 43 Fed. 

333- 
Denny v. Dodson, 32 Fed. 909. 
St. P. & P. R. R. Co. V. N. P. R. R. Co., 139 

U. S. 18. 
Doolan v. Can% 125 U. S. 618 (L. ed. 847.) 
U. S. V. Curtner, 38 Fed. i. 
Bntts V. N. P. R. R. Co., 119 U. S. 72 (L. ed. 

334-) 
Stee/ V. Smelting Co., 106 U. S. 447 (L. ed. 

228.) 
H. &■ D. R. R. Co. V. Wliifney, 132 U. S. 357 
(L. ed. 366.) 

III. 

Were these mineral locations and attempted 
ENTRIES VOID ab initio because made upon non-min- 
eral LAND AFTER THE GENERAL ROUTE OF PLAINTIFF'S 
ROAD WAS fixed; AND THEREFOR INSUFFICIENT TO EX- 
CLUDE LAND FROM THE GRANT.' 

The sixth section of this act provides: "That the 
president of the United States shall cause the lands to 
be surveyed for forty miles in width on both sides of 
the entire line of said road, after the general route 
shall be fixed, and as fast as may be required by the 
construction of said railroad; and the odd sections of 
land hereby granted shall not be liable to sale, or 
entry, or pre-emption before or after they are survey- 
ed, except by said company, as provided in this act." 
We contend the legal effect of this section is to for- 
bid the sale, pre-emption or entry of the odd nurrtber- 
ed sections of non-mineral, public land, not reserved. 



sold, granted, or otherwise appropriated, and free 
from pre-emption or other claims or rights, within 
forty miles on each side of the line of general route, 
after the general or preliminary route shall be fixed, by 
filing a map thereof with the commissioner of the 
general land office. 

The intention of congress in enacting a law, as 
gathered from the statute, is the law. That intention 
must be derived from the words and language of the 
act. The construction, however, must be on the en- 
tire statute; not on a section, sentence or phrase 
standing alone; and where one phrase is susceptible 
of two constructions, and the language of another 
part is clear and definite, and consistent with one of 
the two constructions of which the former part is 
susceptible, but is opposed to the other, that construc- 
tion should be adopted which will render all parts of 
the statute harmonious. 

Alcxatidcr \. \V()rthi)igto)i . 5 Md., 485. 
Sutherland on Stat. Const, sec. 245, et seq. 

Applying these elementary rules of construction, 
the meaning of the sixth section of the act of July 2, 
1864, is rendered too clear for reasonable controversy. 
The term "general route" had, at the time this act 
was passed, a well defined technical meaning in land 
grant terminology. It meant, in contradistinction to 
"definite route," a preliminary line approximating the 
line of final or definite location. It had been the 
custom from the earliest times, as soon as a grant 
was made by congress, to aid internal improvements, 
of lands to be taken along some line the exact loca- 
tion of which was not determined in the act, to order 



19 

withdrawals of the land before such lines were defini- 
tely determined, along a preliminary line of probable, 
or approximate route, to preserve them from adverse 
disposition prior to the final and definite location of 
the line: 

Withdrawal ordered September 28, 1828, on line 

of canal fron Dayton to Lake Erie. 

• 

Withdrawal of lands on line of proposed railroad 
from Brandon, in Mississippi, to Montgomery, in Ala- 
bama, ordered August 19, 1853. 

Withdrawal of lands on line of proposed railroad 
from Shreveport, La., to Vicksburg, Miss., ordered 
December 17, 1853. 

Withdrawal of lands on the line of proposed railroad 
from Gaines Landing, Ark., to boundary line of Texas, 
ordered January 5, 1854. 

Withdrawal of lands on line of proposed railroad 

to connect the Chattanooga with the Central railroad 

of Mississippi at the Mobile & Ohio road, ordered 
January 24, 1854. 

Withdrawal of lands on probable route of the pro- 
posed "North Missouri Railroad," ordered March 
28, 1854. 

Withdrawal of lands on probable route of Iron 
Mountain & Mississippi River Railroad, ordered June 
8, 1854. 

Withdrawal of lands, on probable route of road 
under act of congress granting lands "to aid the Ter- 
ritory of Minnesota in the construction of a railroad 
therein," approved June 29, 1854, ordered July 15. 
1854. 

Withdrawal of lands under act granting lands to 
the state of Iowa to aid in the construction of rail- 
roads, ordered May 15, 1856. 

Withdrawal of lands under an act of June 3, 1856, 
granting lands to Wisconsin to aid in the construction 
of railroads, ordered June 12, 1856. 



20 



Withdrawal of lands under act of August ii, 1856, 
granting lands to the state of Mississippi, Alabama 
and Louisiana, to aid in the construction of railroads, 
probably falling within limits of grant, ordered August 
15, 1856. 

Order of withdrawal made April 9, 1857, to pro- 
tect lands falling within probable line of routes under 
act approved March 3, 1857, granting lands to the 
territory of Minnesota to aid in the construction of 
railroads. 

Withdrawal of lands falling within probable limits 
of grant to state of Alabama to aid in the construc- 
tion of railroads, by act approved March 3, 1857, 
ordered April 21, 1857. 

Withdrawal of lands on probable line of Atchison, 
Topeka & Santa Fe railroad, ordered Maixh 19, 1863. 

Many other instances could be cited, for a more 
particular statement of which see Land Office Report 
for 1886, pp. 136-189. 

The existence of the practice was well known to, 
and approved by congress: 

Act of March 27, 1854, 10 Stat. 269. 

]Vo!cott\. Dcs Moines, 5 Wall, 681, (L. ed.691). 

Williams \. Bakci\ 17 Wall, 144, ( L. ed. 563). 

8 Op. Atty. Gen'l 246. 

16 87. 

18 573. 

A^ P. R. R. Co. V .S7. P., 31. &■ M. Ry. Co., 

26 Fed. S62. 

In the Pacific Railroad's grant of odd numbered 

sections within ten miles of the line of road, by the 

act of July I, 1862, 12 Stat. 489, congress enacted: 

"That within two years after the passage of this 
act said company shall designate the general route of 
said road, as near as may be, and shall file a map of 



the same in the department of the interior, where- 
upon the secretary of the interior shall cause the lands 
within fifteen miles of said designated route or routes 
to be withdrawn from pre-emption, private entry, and 
sale; and when any portion of said route shall be 
finally located, the said secretary of the interior shall 
cause the said lands hereinbefore granted to be sur- 
veyed and set off as fast as may be necessary for the 
purposes herein named." 

By the act approved July 2, 1864, 13 Stat. 356, 
this provision was amended by substituting the word 
"twenty-five" in lieu of the word "fifteen." 

These acts did not initiate a new proceeding in the 
department, but rendered compulsory an existing cus- 
tom. They stamped with legislative approbation an 
existing well known distinction between lines of 
"definite location" and of "general route." They 
fixed a legislative definition, confirmatory of the ex- 
isting departmental one, upon the latter term, sharply 
distinguishing it from the former. "The internal im- 
provement grants are all of the same general charac- 
ter, having the same great object in view, and are all 
part of one grand system, and laws having in view 
the same general purpose should be construed in pari 
materia, unless the intention of the legislature is 
plainly shown to be otherwise." 

N. P. R. R. Co., decision rendered by Secretary 

Lamar, August 15, 1887. Unpublished. 
N. P. R. R. Co. V. Bardcn, ct al., 46 Fed. 603. 

And it is to be presumed that the term "general 
route" is used in the Northern Pacific act in the set- 
tled meaning it had acquired by departmental usage 
and congressional enactments in legislation in pari 



mate7'ia therewith; that is of an approximate or pre- 
liminary hne. 

Sutherland on Stat. Const., sec. 255-6. 

EndHch on Interp. of Stat., sec. 33, 365, 367-8-9. 

Sedgwick on Stat. Const. 225, {2 ed.) 

And this conclusion is strengthened when, examin- 
ing the third section of the act, we find that 
congress there characterizes the line of definite loca- 
tion by the terms constantly appropriated to that 
purpose, viz: the line "definitely fixed." 

How is this preliminary or "general" route fixed .'' 
The act does not, in so many words, require that the 
general route shall be fixed, but it assumes that it 
shall be. As to the method of fixing it, the act is 
silent. This silence as to matter of details compels 
us to resort to legislation /;/ pari materia with this. 
to ascertain the manner of fixing the route. 

Portage Land Grant, 14 Op. Atty. Gen. 648. 

The first section of the act of September 20, 1859. 
9 Stat. 466, granting lands to aid in the construction 
of a railroad, provides that "a copy of the survey of 
said road and branches, made under the directions of 
the legislature, shall be forwarded to the proper local 
land offices respectively, and to the general land 
office at Washington City." The second section 
grants the alternate sections for six sections in width 
on each side of the road, to aid in its construction, 
but provides that "in case it shall appear that the 
United States have, when the route of said road and 
branches is definitely fixed by the authority aforesaid, 
sold anv part of any section hereby granted, or that 



23 

the right of pre-emption has attached to the same," 
indemnity shall be selected therefor. See also act of 
June lo, 1852, 10 Stat. 9; act of February 9, 1853, 
10 Stat. 155. 

Under these acts the line of the road was "fixed" by 
filing a plat thereof in the land office. After the act 
of 1853 the wording of railroad land grant acts was 
slightl)' changed, and, until the Union Pacific grant of 
July 1, 1862, in no case, in terms, required the filing 
of a map of the line in the land office. Act of June 
29, 1854, 10 Stat. 302; act of May 15, 1856, 11 Stat. 
9; act of May 17, 1856, ii Stat. 15; act of June 3, 
1856, II Stat. 17; id. 18; id. 20; id. 21; act of August 
II, 1856, II Stat. 31; act of March 3, 1857, 11 Stat. 
195; also in all, or nearly all, of the acts between 
July I, 1862, and July 2, 1864; act of March 3, 1863, 
12 Stat. 772; act of May 5, 1864, 13 Stat. 66; act of 
July I. 1864, 13 Stat. 339. 

These acts granted the alternate sections for so 
many sections in width on each side of the road, with 
a right of indemnity for such lands as it was found 
the United States had disposed of "when the lines of 
the roads are definitely fixed." The method of "fix- 
ing" the lines is not prescribed, but, as in the case of 
"fixing" the general route of the Northern Pacific, is 
left to be gathered from the legislation in pari mate- 
ria. This question early came up for determination, 
and it was ruled, and has since been uniformly held, 
that, construing these acts with the earlier acts /;/ 
pari materia, the route must be considered as fixed 
when plat thereof was filed in the land office. 

Iowa Railroad Claims, 8 Op. Atty. Gen. 392. 



24 

K. P. Ry. Co. V. Diinincyci\ 113 U. S. 629 (L. 
ed. 1 1 24). 

These decisions both determine the manner in 
which the route of a railroad, under these acts, is to 
be "fixed" when the act itself is silent, and show the 
reasonable source of that rule in the legislation /;/ 
pari Diatcria therewith. And applying this rule to the 
sixth section of the Northern Pacitic act, we find that 
section contemplates the filing of a map of the pre- 
liminary line of the road in the general land office. 
Such is the necessary meaning of the phrase "the 
general route shall be fixed." 

But while the sixth section clearly contemplates the 
filing of a map of the preliminary line of route in the 
interior department, it contemplates something more; 
it contemplates a reservation of certain lands de- 
scribed as "the odd sections of land hereby granted" 
from sale, pre-emption, or entry except by the rail- 
road company. What are the "odd sections of land 
hereby granted," which are to be reserved.^ The lit- 
eral meaning of the phrase "land hereby granted," if 
unmodified, unquestionably would be the identical 
lands to which the company acquires title under the 
act; that is, the odd numbered sections of non-min- 
eral public land to which the United States has full 
title, not reserved, sold, granted, or otherwise appro- 
priated, and free from pre-emption or other claims or 
rights at the time the line of the road is definiteh- 
fixed and a plat thereof filed in the office of the com- 
missioner of the general land office, on each side of 
the line of definite location, within the limits of the 
grant. But the rules of construction forbid us apply- 



25 

ing such literal meaning to these words, if they are 
susceptible of another reasonable construction; for by 
so doing we render of no effect other important pro- 
visions in the same section. 

Endlich on Interp. of Stat., sec. 35. 
Sutherland on Stat. Const., sec. 245, ct scq. 

The phrase in the statute is: "the odd sections of 
land hereby granted." Land in odd sections only is 
granted by the act; and if the words "land hereby 
granted" are taken in their literal signification, the 
words "odd sections" are unnecessary and surplusage. 
They are deprived of any effect whatsoever, becoming 
a mere repetition of what is expressed in the words 
"land hereby granted." 

A construction of this section as simply forbidding 
the sale, pre-emption, or entry of the odd numbered 
sections on each side of the line of definite location, 
from and after the time that line should be fi.xed and 
a plat thereof filed in the office of the commissioner 
of the general land office, renders the entire prohibi- 
tory clause surplusage and unnecessary, a useless re- 
petition of what is necessarily contained in the third 
section of the act. The grant being /;/ pracsciiti, 
vesting in the grantee the legal title, to be thereafter 
attached to the specific lands upon their identification 
by the definite location of the line of the road, these 
lands are necessarily withdrawn from sale, pre-emp- 
tion, or entry after that event, because b}' that act 
they become the private property of the grantee, and 
this independently of the provisions of the sixth sec- 
tion. 

The phrase "lands hereby granted " is stisceptible 



26 

of a second interpretation, harmonizing all parts of 
the statute and rendering the statute in full accord 
with the practice of the department and the policy of 
the government as indicated in the Union Pacific act; 
that is, in a quasi metaphoric sense, as a brief term de- 
scriptive of the qualiiy and status of lands required to 
exist in order that they shall pass under the grant. 
Not all of the odd numbered sections are granted, but 
those only that are non-mineral, public lands, to 
which the United States have full title not reserved, 
sold, granted or otherwise appropriated, and free from 
pre-emption or other claims or rights. These are the 
odd sections of "land hereby granted." And the sixth 
section forbids the initiation of claims or rights upon 
lands in this condition only. It is in this sense, we 
think, the phrase is used. The intention of congress 
was not to prevent the perfecting of such claims and 
inchoate rights as, not yet reaching the dignity of 
vested rights, were subject to the power of congress, 
but to prevent the initiation of any and all new claims 
or rights to these odd sections. To express this in- 
tention without repeating the phrases used in the third 
section to describe the condition of the title and the 
character of the soil of lands granted, the words 
"hereby granted" were used. The entire section must 
be construed precisely as though it read: 

"The president of the United States shall cause the 
lands to be suryeyed for forty miles in width on both 
sides of the entire line of said road after the map of 
the approximate line thereof shall be filed in the gen- 
eral land office, and as fast as required by the con- 
struction of said road; and the odd sections of non- 
mineral, public land, to which the United States have 
full title, not reserved, sold, granted, or otherwise 



27 

appropriated, and free from pre-emption or other 
claims or rights, shall not be liable to sale, pre- 
emption or entry before or after they are surveyed, 
except by said company as provided in this act." 

This prohibition from sale, pre-emption or entry is 
to be effective from and after the fixing of the general 
route. The intimate connection between the provis- 
ions for fixing the general route of the road and for 
the reservation of the odd numbered sections, bound 
up into one sentence as they are, forbids their entire 
disconnection and treatment as totally independent 
of each other. Indeed, unless the lands were pre- 
served by a prohibitory reservation, it would be un- 
reasonable to suppose the company would file a pre- 
liminary line of the road at all, since such action 
would but give notice to the world at large where the 
line would run, and inevitably cause settlers to rush 
in and at once appropriate the desirable lands, to the 
company's loss. Congress was aware of this, yet con- 
templated in its legislation the filing by the company 
of a map of its preliminary line. And as in the same 
sentence they mcorporate a prohibition from sale, 
pre-emption or entry, a prohibition which is useless 
surplusage unless it contemplates a reservation of the 
lands on such preliminary line, the inference is almost 
irresistible that the intention was to prohibit the sale, 
pre-emption or entry of the odd numbered sections 
defined by the fixing of the general route from and 
after the time it was fixed. And viewing this pro- 
vision in the light of the settled practice of the de- 
partment, and of the policy of congress, as shown in 
the analogous Union Pacific gran^ the construction 
for which we contend is placed beyond question. 



28 



DEPARTMENTAL CONSTRUCTION. 

July 31. 1870, the company filed with the interior 
department two riiaps showing the line of general 
route. August 31, 1870, these maps were approved 
by the secretary so far as they showed the general 
route through Minnesota, Wisconsin and a portion of 
Washington; and the lands along that portion of the 
general route ordered withdrawn. 

The maps were not approved so far as they indi- 
cated that portion of the route extending through Da- 
kota, Montana and Idaho, and a portion of Washing- 
ton. The company acquiescing in this action by the 
department, thereafter, and prior to February 21, 
1872, transmitted to the secretary of the interior, for 
his approval, a map of the general route of that por- 
tion of its road extending through Dakota, Montana, 
Idaho, and to a point in Washington where it inter- 
sected that portion of the former line of general route 
that had been accepted by the department. This 
last line was accepted by the secretary. February 
21, 1872, he transmitted it, marked "map of the pre- 
liminarv route of the Northern Pacific railroad," to 
the commissioner of the general land office, and or- 
dered the odd numbered sections on and within forty 
miles on each side of said line withdrawn from sale, 
pre-emption or entr}-. The same day the map was 
filed in the commissioner's office. Almost imme- 
diately thereafter the question of the proper interpre- 
tation of section six, under which the right to file this 
map was claimed, became a matter of great interest 
in the department. This question having been squarely 
presented to the secretary of the interior in a case 



pendirif^ before him, he referred the matter to the at- 
torney general for his opinion; and, March 15, 1873, 
Assistant Attorney General Smith, in an elaborate 
opinion, held that the effect of section six was to for- 
bid the pre-emption, sale or entry of public lands in 
the odd numbered sections within the prescribed dis- 
tance on each side of the line of general route, from 
and after the time such route was fixed. 

Copp's Pub. Land Laws, 377 (i ed). 
March 22, 1873, Secretary Delano adopted this 
construction as the correct exposition of the law. 
From that time until the present, this construction 
has obtained in the interior department. 

Engchfctson v. .V. /'. R. R. Co. . i C. L. O. 51. 

Enisbcrgcrw. N. P. R. R. Co., 3 C. L. O. 85. 

Hogland v. A^. P. R. R. Co., 5 C. L. O. 107. 

N. P. R. R. Co. V. Piroiito, decided by the sec- 
retary, Sept. 19, 1874. 

Classification of Railroad Grants, 2 Copp's L. L. 
866 (2 ed.) 

Trcpp V. N. P. R. R. Co., i L. D. 380. 

Hayes v. Parker et a/., 2 L. D. 554. 

Monaglew. N. P. R. 7?. (T^. , 2 L. D. 529. 

A^. P. R. R. Co. V.Hopkins & Parker, 2 L.D.569. 

JV. P. R. R. Co. V. Burt, 3 L. D. 490. 

Mansfield N. N. P. R. R. Co., 3 L. D. 537. 

N. P. R. R. Co. V. Me Lean, 5 L. D. 529. 

Whitney V. N. P. R. R. Co., 5 L. D. 343. 

Atlantic & Pacific R. R. Co., 6 L. D. 86. 

N. P. R. R. Co. V. Vanghn, 6 L. D. 11. 

N. P. R. R. Co. V. Burns, 6 L. D. 21. 

N. P. R. R. Co. V. Martin, 6 L. D. 657. 



30 

A'. P. R. R. Co. V. Gulf ord Miller. 7 L. D. 100. 

Ban- V. N. P. R. R. Co. 7 L. D. 235. 

N. P. R. R. Co. V. Boioman, 7 L. D. 238. 

.V. P. R. R. Co. V. Evans, 7 L. D. 131. 

N. P. R. R. Co. V. Anrys, 8 L. D. 362. 

A'. P. R. R. Co. V. Urquhart, 8 L. D. 363. 

McClurcN. N. P. R. R. Co., 9 L. D. 155. 

Harris V. N. P. R. R. Co., 10 L. D. 264. 

Gah'\. N.P.R.R. Co., 10 L. D. 307. 

Offiitt V. A'. P. R. R. Co. , 9 L. D. 407. 

A'. /'. R. R. Co. V. Roberts, 10 L. D. 427. 

iV. P. R. R. Co. V. Stovcnom-, 10 L. D. 645. 

N. P. R. R. Co. V. Bnm'ii, 10 L. D. 662. 

Mc Arthur V. N. P. R. R. Co., 1 1 L. D. 92. 

A^. P. R. R. Co. V. Marshall, 1 1 L. D. 443. 

A'. P. R. R. Co. V. Miller, i i L. D. 482. 

N. P. R. R. Co. V. Sales, 12 L. D. 299. 

A'. P. R. R. Co. V. Harris, 12 L. D. 351. 

A'. P. R. R. Co. V. Ambers, 12 L. D. 395. 

St. P. M. & M. Ry. Co. V. Lund, 12 L. D. 39S. 
Upon this theory hundreds of cases have been ad- 
judicated in the district and general land offices. 
Thousands of acres have been patented to the rail- 
road company. Purchasers relying upon these decis- 
ions, have invested in thousands of acres of land, 
both patented and unpatented. Hundreds of farms 
have been made and homes grown up, founded on 
faith in these decisions, which, if reversed, will be 
hopelessly lost. The railroad companj' has mortgag- 
ed its grant and floated its bonds issued under such 
mortgage, upon faith in this construction. Under 
such circumstances only the most clear and palpable 



31 

case of error would justify the court in overruling 
that practical, uniform construction, continued for so 
many years. Were the question one of doubt, which 
we do not think it is, it would be the duty of the court 
to follow this departmental construction. 

U. S. V. B. & M. R. R. R. Co.. 98 U. S. 341 
(L.ed . 200). 

K. P. Ry. Co. V. A. T. & S. F. R. Co.. i\2 \J . 

S. 414 (L. ed. 796). 

U. S. V. Graliam, no U. S. 221 (L. ed. 127) 

Broivn V. U. 5., 113 U. S. 568 (L. ed. ig8o). 
• U. S. V. Afoflrc, 95 U. S. 760 (L. ed. 589). 

//. &■ D.R.R.Co. V. Whitney. 132 U. S. 357 (L. 
ed. 367). 

U. S. V. /////, 120 U. S. 169 (L. ed. 627). 

l^. S. V. Pui^li. 99 U. S. 269 (L. ed. 322). 

The Laura. 114 U. S. 416 (L. ed. 147). 

Robertson v. Donniing, 127 U. S. 607 fL.ed. 271). 

U. S. V. Philbrick. 120 U. S. 59 (L. ed. 561). 

Edivards Lessee v. Darby, 12 Wheat. 206. 

U. S. V. U. P. Rv. Co., 37 Fed. 555. 

CONSTRUCTION BY THE COURTS. 

Not only has the interior department constantly 
construed the si.xth section of this act of July 2, 1864, 
as making' a withdrawal from sale, pre-emption or 
entry, except by the company, of the odd sections on 
the line of general route from the time such line is 
fixed, but the courts have, with almost equal uni- 
formity, placed the same construction upon the act. 

The first time this question appears to have been 
decided by the courts is in ^'\^. P. R. R. Co. v. Pironto, 



32 

3 Dak. 220 s. c. 14 N. W. 103, decided November 
20, 1882. 

It was next passed upon by the supreme court of 
Montana in N. P. J\. R. Co. v. Lillw 9 Pac. 116, de- 
cided Jan. 7, 1886. 

The case of N. P. R. R. Co. v. Pironto, supra, 
having been appealed to the supreme court, the de- 
cision of the lower court on this point was affirmed 
November 15, 1886. Biittr: v. N. P. R. R. Co., 119 
U. S. 72 (L. ed. 336). 

January 18, 1887, the supreme court of Montana, 
in U. S. V. .V. P. R. R. Co., \2 Pac. 770, again de- 
cided this question in accordance with prior decis- 
ions. 

March f4, 1887. Attorney General Garland, in ^V. 
P. R. R. Co. V. All /In; 18 Op. Atty. Gen. 571, ruled 
this question as it had been ruled by every preceding 
tribunal. 

November 28, 1887, Mr. Justice Field, in 
Denny v. Dodson, 32 Fed. 909, after discussing the 
question, followed the preceding decisions. Judge 
Deady concurring as to this proposition. 

In U. S. V. a: p. R. R. Co., 41 Fed. 847, Judge 
Sawyer adopted as correct the uniform preceding con- 
struction. 

In .S7. /'. & P. R. R. Co. V. .V. P. R. R. Co., 139 
U. S. 17, decided March 2, 1891, the supreme court 
affirmed its ruling in the Buttz case, snprn. 

In N. P. R. R. Co. V. Barden, 46 Fed. 604, de- 
cided June 12, 1891, Judge Sawyer adopted and fol- 
lowed the preceding rulings. 

The court below held these decisions to be errone- 



33 

ous; that the sixth section of the Northern Pacific act 
did not create a reservation of the odd numbered sec- 
tions on each side of the Hne of general route after 
that route was fixed; and that it only forbade the 
making of sales and the initiation of entries upon the 
odd numbered sections after they had become the 
private property of the grantee by fixing the line of 
definite location; thus rendering the entire prohibitory 
clause in this section a useless repetition of what was 
necessarily contained in the third section of the act. 
Referring to the circuit court decisions, the learned 
judge held that he was under no obligation to follow 
them, ignoring the rules of judicial comity so well set- 
tled in: 

Goodyear Dental Viilean Co. v. Willis, i Flip- 
pin, 390. 
Reed \. Atlantic & Paeific R. R. Co., 21 Fed. 
283. 
- Washburn, et al. v. Gould, 3 Story. 133. 

American Wood Paper Co. v. Fiber Disintegrat- 
ing Co., 3 Fisher, 363. 
Goodyear v. Berry, 3 Fisher, 443. 
Tillingham v. Mitchell, 4 Fisher, 624. 
Goodyear Dental Co. v. Root, 6 Fat. Office Ga- 
zette, 154. 
JVorszc'ich Mnfg. Co. v. City of Philadelphia, 30 

Fed. 625. 
Celluloid Mnfg. Co. v. Zylonite Brush & Comb 

Co., 27 Fed. 750. 
Thompson v. E. P. Donncll Co., 40 Fed. 383. 
Central Trust Co. v. Wabash, etc. R. Co., 29 
Fed. 618. 



34 

Herman oh Estoppel, sec. 113, 114. 
Lake Superior, cte. Co. v. Ciiiiiiiiii^/nmi, 44 P"ed.' 
'■• 588. 

Speaking of the case of Ihttt:: v. X. P. R. R. Co. 
the learned judge, with somewhat scant regard for 
the courtesy which the United States Supreme Court 
might fairly clai .1 as its due, and with still scantier 
evidence upon which to base its charge, boldh' charges 
that the court, in the rendition of its opinion, "had 
in mind more the provisions of the act making the 
grant to the Union Pacific and Central Pacific Rail- 
way Companies "" * * * than the act making 
plaintiff's grant." And in conclusion he holds that 
the decision in the case was a diction and not binding. 
This conclusion ignores the definition of a dictum. 
The court below, in the Buttz case, had hcl<l the 
Indian title to the land in controversy was extinguished 
May 2, 1873, over a year after the general route of 
road opposite thereto was fixed, and twenty-four da3's 
before the filing of the map of definite location. 
{X. I\ R. R. Co. V. J'iroiito, 14 N. \V. 105). No 
error was assigned as to this portion of the decision. 
The principal errors relied upon in the appeal were 
the ruling that the fact that the country was "Indian 
country" was not sufficient to exclude it from the 
grant; and that the filing of a map of the general 
route in the office of the commissioner of the general 
land office February c i , 1872, was sufficient to pre- 
vent the subsequent initiation of claims or rights 
thereto by parties other than the railroad company. 
After determining the first of these propositions in 
favor of the company's contention, a determination of 



35 

the second, as it was determined, would be conclusive 
of the case, whatever time the line or the road was 
definitely fixed. This proposition was presented by 
the record, it was fully argued by counsel, and was 
squarely decided by the court. Under such circum- 
stances the decision on this point is in no sense a 
dictvin, although another point was also determined 
w^hich was equally conclusive of ihe case. The decis- 
ion on this question was as much a part of the judg- 
ment of the court as was that on any of the several 
other matters presented and decided. 

Railroad Co. v. Scliuttc, 103 U. S. 143 (L. ed. 

327J- 
Hawcs\. Contra Costa Water Co., 5 Saw. 295. 

Starr v. Stark, 2 Saw. 639. 

Clark \'. Tlioiiias, 4 Heisk, 419. 

Alexander v. Worthiiigtoii, 5 Md. 483. 
The case of .S7. P. & P. R. R- Co. v. A^ P. R- R- 
Co. 139 U. S. I, is a decision made under similar cir- 
cumstances. In neither of these cases is the decision 
as to the question under consideration dictum. It is 
conclusive and binding as to this qu'-stion, upon all 
courts. And that section six of the Northern Pacific 
act does forbid the sale, pre-emption or entry of the 
odd numbered sections on each side of the line of gen- 
eral route, after the general route is fixed, can no 
longer, with propriety, be questioned. 



36 

STARE DECISIS AND ESTOPPEL. 
The certainty and stability of the law are among- 
its chief excellencies. By following this legal injunction 
the common law has become a symmetrical system; 
the same authoritative rule applied to statutory con- 
struction gives a wholesome precision to dubious gener- 
alities, and otherwise removes doubts which arise up- 
on obscure provisions; and has a salutary tendency to 
give confidence to those who must act upon statutes 
but cannot settle their meaning. The rule of stare 
decisis is the authority of judicial decisions as prece- 
dents in subsequent litigation. When a point has 
been once settled by decisions it forms a precedent 
which should not afterwards be departed from. Such 
precedents must from the nature of our legal system 
be the same to the science of law as a convincing 
series of e.xperiments is to any other branch of induc- 
tive philosophy. They are, on being promulgated, 
immediately relied upon according to their character, 
either as confirming an old or forming a new principle 
of action, which, perhaps, is at once applied to a 
thousand cases. Such other cases are continually 
multipljing. Numerous and valuable rights may be 
claimed under them. The court almost always, in 
deciding any question, creates a moral power above 
itself; and when the decision construes a statute, it is 
legally bound for certain purposes to follow it as a de- 
cree emanating from paramount authority, according 
to its various applications in and out of the immediate 
case; and a deliberate decision becomes authority in 
any like case. It is then the highest evidence of what 
the law is applicable to the subject; it should be fol- 



37 

lowed unless the law was manifestly misunderstood or 
misapplied in the case decided; and even then, after 
long adherence to that error, it may become fixed and 
incapable of judicial correction. Judicial precedents 
form the standard or guide by which people can vent- 
ure with confidence to deal with each other. They 
are standards upon which professional men rely in ad- 
vising their clients. Where, therefore, a decision, or 
series of decisions, have become a rule of property, 
justice and reason require it to be adhered to as long 
as the statute upon which it is based remains un- 
changed. A decision made upon solem argument and 
mature deliberation must be presumed to be correct. 
The public has a right to rely thereon, and this is espec- 
ially true to a decision that has stood for a number of 
years and has become a rule of property. It acquires 
additional strength where it must be presumed to have 
been brought to the knowledge of congress or the leg- 
islative department, and such department has not ex- 
pressed its dissent by a declaration of the law or other 
positive enactment. ^ 

Endlich on Interp. of Stat. sec. 363. 

Sutherland on Stat. Const, sec. 313. 

Wells on Res. Adjudicata and Stare Decisis, chap. 
42. 

Herman on Estoppel and Res Judicata, sec. 113, 
114. 117- 

HiJin V. Curtis, 31 Cal. 402. 

Lcinp V. Hastings, 4 Greene (la. ) 449. 

Wallace V. Mahaffay, (Kas. ) 12 Pac. 707. 

U7iite V. Deinnaii, i Ohio State, 115. 

Rccd V. Oivnby, 44 Mo. 206. 

Fis/ier V. Horicon, etc. Co. 10 Wis. 354. 



3<^ 

The construction for which we contend is supported 
by a long line of authorities. It has become a rule 
of property. Under it vast property interests have 
grown up, and the title to thousands of acres of valu- 
able land acquired. 

Under circumstances not so strong as those pre- 
sented here, it has been held that a departmental con- 
struction acted upon by all the departments of the 
government and by the public for a number of years, 
arises to the dignity of an estoppel, so that even the 
government cannot change or alter the same. 
['. S v. McLmtgJiHu, 30 Fed. iCi. 

And the government should now in ecjuity be es- 
topped from changing the construction of the sixth 
section of the act which has obtained in the depart- 
ment and in the courts for so many years; and, cer- 
tainly, if the government be estopped, those claiming 
under the government, and in privity therewith, 
should be estopped from asserting a different con- 
struction. 

CONSTKl'CTION BY CONGRESS. 

In addition to the authorities we have heretofore 
cited, we desire to call attention to the fact that the 
construction of the sixth section of this act for which 
we contend has been ratified and confirmed by con- 
gress: We have seen that this construction of the 
section by the interior department has been uniform 
and continuous since 1873; and it must be presumed 
that congress has knowledge of any long and contin- 
ued construction of its acts by the interior department. 
a; /'. A'. A'. Co. v. .S7. P. M. c'V J/.,26Fed. 562. 



39 

Wolcott V. Dcs Moines, 5 Wall. 687 (L. ed. 691). 
Williams v. Bakci\ 17 Wall. 152 (L. ed. 563). 
K. C. etc. R. R. Co. V. Att)'. Gciil, iiS U. S. 

682 (L. ed. 282). 
St. P. M. & M., 8 L. D. 265. 
C. P. Masterson, 7 L. D. 174. 
In addition to these decisions which have been pub- 
lished and brought to the notice of the public, it 
should be farther noticed that this construction has 
been given to this section in the annual reports made 
by the commissioner of the general land office to con- 
gress. 

See Land Office Report for 1881. page 182. 
Says Mr. Endlich, in his work on the Interpretation 
of Statutes, 363: 

"When doubtful words have received the same in- 
terpretation in a succession of cases, and the legisla- 
ture, which is presumed to know of such decisions, 
has not expressed its dissent by a declaration of the 
law or other positive enactment, the courts will con- 
sider themselves bound to adopt thai meaning." 

Congress has nowhere expressed its dissent from 
the construction which the interior department and 
the courts have placed upon the sixth section of the 
Northern Pacific charter. On the contrary, it has 
confirmed and approved that construction. By the 
act approved March 3, 1887, 24 Stat. 556, congress 
provided: 

•That the secretary of the interior be. and is 
hereby authorized and directed to immediately adjust, 
in accordance with the decisions of the supreme court, 
each of the railroad land grants made by congress to 
aid in the construction of railroads and heretofore un- 
adjusted. 

At the time this act was passed, the construction 



40 

of the Northern Pacific act, for which we contend, 
had uniformly obtained in the department for four- 
teen years. This act was approved only four months 
after the decision of the supreme court in the case of 
Buttr. V. Northern Pacific R. R. Co., 119 U. S. 72 
(L. ed. 336), and while that decision was fresh in the 
minds of the courts, of the people, and of congress. 
Plainl)', a more direct confirmation by congress of a 
judicial construction could not well be made. 

The supreme court of the United States, speaking 
of the force and effect to be given to such congres- 
sional confirmation of a construction, says: 

"If a thing contained in a subsequent statute be 
within the reason of a former statute, it shall be 
taken to be within the meaning of that statute. And 
if it can be gathered from a subsequent statute in pari 
materia, what meaning the legislature attached to the 
words of a former statute, they will amount to a leg- 
islative declaration of its meaning, and will govern 
the construction of the first statute." 

U. S. V. Freeman, 3 How. 564. 

Endlich on Interp. of Stat., 365-6-7. 

Edivards Lessee v. Darby, 12 Wheat. 210. 

U. S. V. Alexander, 12 Wall. 177 (L. ed. 381). 

U. S. V. Mvnderse, 7 Blatch. 490. 

Goodal! V. 'J'nftle, 3 Bliss. 173. 

U. S. V. Ti/den, 10 Benn. 173. 

Jolinson V. Tompkins, Baldwin, 5S2. 

C P. Masterson, 7 L. D. 174. 
The general route of the road opposite this land 
being fixed February 21, 1872, and the land being on 
that day non-mineral, public land to which the United 
States had full title, not reserved, sold, granted, or 
otherwise appropriated, and free from pre-emption or 



41 

other claims or rights, the prohibitory injunction from 
sale, pre-emption or entry, at once became applicable 
thereto with precisely the same effect it would had the 
sixth section described this land by metes and bonds, 
and prohibited the sale, pre-emption or entry thereof 
except by the company. From the time the general 
route was fixed no man could purchase, enter or ac- 
quire a pre-emption right or claim to this land, be- 
cause it was expressly prohibited by the statute. The 
lands were as safe from hostile entry or location under 
this reservation as under the grant after filing the map 
of definite location. From the time the general route 
was fixed, the odd numbered sections of non-mineral, 
public lands were held in trust by the United States 
for the purpose of assisting in the construction of the 
road. They were dedicated and devoted to that pur- 
pose. The grant is a contract as well as a law, and 
the company, by accepting the same and fixing the 
line of its general route, a task only to be accom- 
plished at great expense, acquired a vested right to 
have these lands reserved until such time as it could 
definitely locate the line of its road and construct the 
railroad, provided it performed these acts prior to a 
breach of the conditions of the grant and consequent 
forfeiture declared. 

U. S. v. Citrtncr, 38 Fed. 8. 

5. P. R. R. Co. V. Orton, 32 Fed. 468. 

N. P. R. R. Co. V. Lilly, (Mont.) 9 Pac. 118. 

U. S. V. McLaughlin, 30 Fed. 155. 

St. P. & P. R. R. Co. V. N. P. R. R. Co., 139 
U. S. 18. 

5. P. R. R. Co. V. IViggs et ai, 43 Fed. 333. 

Denny v. Dodson, 32 Fed. 909. 



42 

The fact that mineral lands were exxluded trom the 
grant would not authorize a trespass upon this tract 
of non-mineral land. The moment the locators de- 
scribed in the answer put foot on this land, they were 
trespassers; the first shovelful! of dirt they turned 
was a violation of the law. 

5. P. R. R. Co. V. Orto7i, 32 Fed. 468. 
They were trespassers without right and without 
power to acquire right. The acts of congress in force 
at the time of fixing the general route of plaintiff's 
road, authorized the exploration and occupation of 
mineral lands of the public domain only. 14 Stat. 
251. Subsequent acts have not enlarged this right. 
This land had ceased, after February 21, 1872, to be 
a portion of the public domain. 

Ncivliallw Sanger, 92 U. S. 761 (L. ed. 769). 

L. L. & G. R. Co. v. U. S., 92 U. S. 733 (L. 

ed. 639). 

Lands reserved, or in which another has acquired 

a vested interest, are not subject to exploration and 

location under the mineral laws. 

Golden Terra M. Co. v, Mahler (Dak), 4 Mor- 
rison's M. Rep. 398. 
N or tJi Noonday Co. v. Orient Co., 11 Fed. 125. 
Francoctir v. Nczvhonse, 40 Fed. 624 (Opinion of 

Judge Sabin). 
Reservation of Lands for Public Purposes, 17 Op. 

Atty. Gen. 230. 
Kimball \. San Juan S. M. Co. (Col.), 12 Pac. 

198. 
Noonan V. Caledonia M. Co., 121 U. S. 393 (L. 
ed. 1061). 



43 

The pretended locations upon this land made in the 
forms prescribed by law were absolutely null and void. 
Conceding that the reservation on general route will 
not prevent the discovery of a mine, or the land from 
becoming mineral at any time before the line of the 
road is .definitely fixed, immediately upon its becom- 
ing mineral by the discovery of the metal in paying 
quantities, the land is brought vv'ithin the exception 
and taken out of the scope of the grant; it ceases, by 
such discovery, to be a portion of the "lands hereby 
granted," and hence its entry is no longer prohibited 
by the sixth section. But this result cannot be at- 
tained except by a discovery of the mineral. 
A^. P. R. R. Co. V. Bardcii, 46 Fed. 604, 

And since the answer concedes this land was non- 
mineral, upon which a discovery was not. and could 
not be made, it concedes that this land was never 
taken out of the reservation. And the pretended 
locations, being made upon non-mineral reserved 
lands, and the applications for patents based thereon, 
affected no rights which the company would have ac- 
quired to the land upon filing its map of definite loca- 
tion, [^had no such pretended locations or applications 
been made. 

The reservation in the sixth section of the act of 
July 2, 1864, is as broad as the exceptions in the third 
section ; and no sale, pre-emption or entry which 
would be sufficient under the third section to exclude 
lands from the grant, could be made after the general 
route was fixed. The sixth section absolutely forbids 
the initiation of any entry, claim or right after the 



44 

general route is fixed, upon lands which would other- 
wise pass by the grant. 

Buttz V. N. P. R. R. Co., 119 U. S. 72 (L. ed. 

336.) 
St. P.& P. R.R. Co. V.N. P. R. R. Co., 139 U. 

S. 18. 
Denny v. Dodson, 32 Fed. 909. 
U. S. V. Curtncr, 38 Fed. i. 
S. P. R. R. Co. V. Wiggs & Nc-wvtan, 43 Fed. 

333- 
A^. P. R. R. Co. V. Bardcu, 46 Fed. 604. 
Doolan v. Can\ 125 U. S. 618 (L. ed. 847). 
Smelting Co. v. Kcvip, 104 U. S. 636 fL. ed. 

877)- 
Steele V. Smelting Co, 106 U. S. 447 (L. ed. 
228.) 

It would be a strange construction, indeed, which 
would permit parties seeking to defeat this reserva- 
tion and the pronounced will of congress to preserve 
these lands for the railroad company, to initiate, b}^ 
an open violation of one section of the act, a claim 
or right which, under another section, would do ex- 
actly what congress had declared by the first section 
should not be done. 

It should further be noted that it is admitted that this 
land, together with other odd numbered sections, was 
withdrawn from sale or location, pre-emption or 
homestead entry, by executive order received at the 
district land office May 6, 1872. This executive or- 
der did not rest upon any express statutory authority 
requiring it, but upon a general authority in the land 
department, the existence of which has been recog- 



45 

nized by congress and repca'tedly affirmed by the su- 
preme court. 

Act of March 27. 1854, R. S., sec. 2281. 
N. P. R. R. Co. V. Mi/Icr, 18 Op. Atty. Gen. 573. 
Wolcott V. Des Moines, g Wall. 681 (L. ed. 691). 
Grisarv. McDowell, 6 Wall. 381 (Led. 868). 
Williams v. Baker, 17 Wall. 144 (L. ed. 563). 
Wolsey V. Chapman, loi U. S. 755 (L. ed. 920). 
Reservation of Lands, 17 Op. Atty. Gen. 160. 
Reservation of Lands, 17 Op. Atty. Gen. 230. 
And such executive withdrawal is sufficient to take 
the lands out of the category of public lands open to 
exploration and location for minerals. 

Reservation of Lands, 17 Op. Atty. Gen. 230. 
The pretended mineral location, and application for 
the foregoing reasons, did not exclude the land from the 
grant to the railroad company; and when it filed its 
map of definite location in the office of the comm- 
issioner of the general land office, July 6, 1882, it im- 
mediately became vested with the legal title thereto 
as of the date of the grant. 

St. P. & P. R. R. Co. V. N. P. R. R. Co., 139 
U. S. I. 
And since the only defence set up in the answer is 
a denial of title in the plaintiff, because of the alleged 
existence of these mineral locations, it follows the de- 
murrer to the answer should have been sustained. 

We respectfully submit the judgment herein should 
be reversed. 

FRED M. DUDLEY, 
Solicitor for Plaintiff in Error. 



^ i^ 



|n tht ^Ittitd ^UU^ (^kmxi m^t^t %^^mh. 




NINTH CIRCUIT. 



Ja,3a."u.a.r3r Teraaa, XS92. 



NORTHEEN PACIFIC RAILROAD COMPANY, 

Plaintiff in Ekeor, 
vs. 
* JUNIUS G. SANDERS Ex Al., 
Defendants in Error. 

WILBUR E. SANDERS, 
Counsel for Defendants in Error. 



'^^'^^^ cy^^Zl^^ ^^^^:^^- 



§n the HUxiid ^tatcjs (^ixmt €iom1 ot ^pp^alji. 



NINTH CIBCUir. 



Ts,TLXL3^-ry Teri-rs.. 1Q92. 



NOETHERX TACIFIC RAILROAD COMPANY, 

Appellant, 

vs. 
JUNIUS G. SANDERS Et Al., Appellees. 



STATEMENT OF FACTS. 

This is an action of ejectment. Plaintitf-in-error claims 
title under the United States, and defendants, asserting title 
in the United States, seek to enter the land. 

The act of Congress incorporating and granting lands 
to the Northern Pacific Railroad Company, was approved 
Jnly 2, 1864, and the map of preliminarj- route of said 
road was filed in the office of the Commissioner of the 
General Land Office, February 21, 1872, and the map of 
definite location was filed in the office of the Commissioner 
of the General Land Office, July 6, 1882. 

The lands in controversy were within the place limits of 
the grant as indicated by the preliminary map, and also as 
indicated by the map of definite location. In 1880 or 1881 
sundr}' competent persons entered upon these lands, claim- 
ing they were mineral lands, made mining improvments 



2 

thereon, filed upon them in tlie otKce of the county clerk 
and recorder as placer mines, and in 1881 entered them in 
the United States land office at Helena, Montana, in which 
district of lands the same were situate. 

The affidavits and papers required by law, setting forth 
their possession, occupancy, improvements and claim to the 
lands as mineral lands, were examined Ity the register and 
receiver of said land office, and being in all respects con- 
formable to law, were by them filed and they prepared 
notices setting forth the claims of these several applicants 
for patents to these lands, and caused the same to be pub- 
lished in the proper newspaper nearest the premises, notify- 
ing all persons of the applications for patents thereto by 
said mineral claimants, in conformity with the require- 
ments and provisions of the United States law, and the 
requirements of the Land Department thereunder. Upon 
the publication of these notices the plaintiff filed in said 
United States land office protests against the perfecting of 
said entries, averring it was not mineral land, and that it 
was within the limits of its grant, and did or would belong 
to it upon the definite location of its road. Upon the com- 
pletion of the publication of the notices required by law, 
the mineral claimants appearing in the land office were 
confronted by the railroad comjjany, and by consent of the 
parties, or otherwise, the contests arising by virtue of the 
applications and protests in the local land office were ad- 
journed from time to time until on and after the 0th day of 
July, 1882. On said 6tli day of July, 1882, the line of the 
railroad opposite and by said section was definitely fixed, 
and the plat thereof, mentioned in said section three of the 
act, was filed in the office of the Commissioner of the Gen- 
eral Land Office at Washington. The controversies were 
further continued in the land office from time to time, and 
upon their final hearing it was established that there was 
no gold in the ground sufficient to pay for extracting the 



eanie, nor enough to render tlie ground of comniercial value 
as mining land, and that in fact and in truth it was not 
mineral land, and from those findings there ars no appeals, 
and in truth it is not mineral land. 

ARGUMENT. 

The question then is " Does that land witliin the priniar}^ 
limits of its grant, on an odd section, which at the date of 
the definite location of the road perpendicular thereto and 
the filing of the plat thereof in the General Land Otfice, 
was possessed, claimed and filed on in the proper United 
States land oifice as mineral land, belong to the company, 
if thereafter the entry men cannot complete their entry 
for the reason that it was not in fact mineral land ?" Other- 
wise stated, is that land " free from pre-emption or other 
claims or rights " while it is filed on as mineral land in the 
proper United States land office by persons competent to 
enter the same, who then possess and claim it as mineral 
land. 

The material part of the statute granting the company 
land, and which determines this question is as follows : 

Sec. 3" That there be and is hereby granted to the 
Northern Pacific Railroad Company * * * every 
alternate section of public land, not mineral, designated by 
odd numbers, to the amount of twenty alternate sections 
per mile on each side of said railroad line as said company 
may adopt ^ '" * whenever on the line thereof the 
United States have full title, not reserved, sold, granted, or 
othericise aj)propriated and free from pre-emption or 

OTHER CLAIMS OV rights, AT THE TIME THE LINE OF SAID ROAD 

18 DEFINITELY FIXED, and a plat thereof filed in the office of 
the Commissioner of the General Land Office. 
Vol. 13, U. S. Stat, at Large, page 365. 

As vesting this land in the plaintiff there is no other 
legislation. The plaintiff has no grant but what is con- 



taiiu'tl in tlic foregoing words. There is more to the stat- 
ute, but if this land is not granted by the foregoing extract 
from section 3, it is not granted at alL It is best, there- 
fore, to cling to this extract, and, in the light of it, see if 
the land is described as being granted to the plaintiff. In- 
verting and analyzing this section, we find that it says cer- 
tain lands, which it describes, are not granted to the rail- 
road company. Lands to which, at the time the line of the 
road is definitely fixed and a plat thereof filed in the office 
of the Commissioner of the General Land Office, the United 
States have not full title, or which are reserved, sold, granted 
or otherwise appropriated, are not given to the plaintift', 
nor are lands not free from pre-em2:)tion or other riyhts con- 
veyed to the plaintifi", nor yet are lands given to the plain- 
tiff" which are not theii free from " claimfi.'''' Before the 
plaintiff' can make good its assertion that it owns this 
groimd, it must show that at the date of definite!}' fixing 
the line of its road and filing a plat thereof in the General 
Land Office (whicli in this instance was July 6, 1882) the 
same was free from any " claim." 

From all the acts granting lands for pulilic improvements 
the act under consideration differs in material matters 
which vitally touch this controversy, and much that is said 
in interpreting other acts, unless the difference in the statute 
is ol)served, would be misleading. It is not enough that 
the land be free from " rights,'^ it must also be free from 
" clahnsy 

The Congress herein declined to grant lands in certain con- 
ditions which theretofore in other grants had been freely 
given. Congress chose to have its own land officers deal 
with all applicants for public lands, without interference 
from this corporation which it liad created and endowed. 
It would brook none of its interference in the adminis- 
tration of the land laws, but reserved to the Government 
the untrammelled right to determine, on principles of its 



own, tlie validity of all i-laiiiis which shoiiKl exist to the 
public hinds at the date of the delinite location of the road. 
To the last date the grant was a float, and was one of (juhti- 
titv, not of deflnite land. From Jnly 2, lS(i-|-, to -luly 6, 
1882, being the period from the date of the act granting 
tlie lands, to the time when, in Montana, the line of the road 
was " definitely lixed," there was no requirement that ap- 
plicants for (juartz mines or placer claims should summon 
this ))laintifl" into court if thpir claim was on an odd section, 
within the limits of the "general route." It is not be- 
lieved an instance can be found in the land office where the 
railroad company was a party, or tried, or was permitted to 
be heard, an.d thousands of such claims on odd sections 
were patented within this grant during this period. They 
were not so patented except in i-ecognition of the claim of 
the patentee. 

In the Denny ^^.y. Dodson case there was no claim as- 
serted or set up ; there was simply a claim suggested, and 
there was speculation whether such claim would except the 
land from the grant, and this, too, when the complaint 
alleged that the land l)elonged to the plaintiff. As to such 
imagined claim, it could be said the land of which it was the 
subject was designed to be given to the plaintiff, it being 
confessedly agricultural land. 

But from the facts here, the mineral entrymen's claims 
could not be thus disposed of. They came to the United 
States Land Office, not in defiance of any law of the United 
States nor in contempt o-f anyone's claim or right, but they 
came saying " thi-s claim of ours to this land is not.violative 
of, but in accord with, the rights of the Northern Pacific 
Railroad Company." As thousand of others had done before 
the definite location of the road, they came saying, " this is 
not such land as was granted to the Com])any. We crave 
the right to show it is not such land, but we claim it is our 
own." Responding, as of right it might, the Government 



6 

said to tliem : " "We will receive your application and hear 
yonr proofs as to your claim, and if matters are as you say 
Ave ■will patent to you this land." While this enquiry as to 
this claim was proceeding in the proper land office accord- 
ing to the orderl}' forms of law, the line of the road was 
definitely fixed, the claim existing intact, and the company 
here asserts that while this enquiry was thus proceeding its 
grant attached to this land. The plaintift' claims that it 
"attached to this land because after the definite location of 
the road it ^oas ascertained, or it will hereafter he ascer- 
tained, that the land was non-mineral, and that the mineral 
claim was invalid. It claims that if it had been ascertained 
that the land was mineral in its character, th6 grant would 
not so have attached, and it occupies the position of claim- 
ing that it is its land at the date of the definite location of its 
road or is not then its land, according as a subsequent event 
shall determine ; to be settled by a quasi-judicial tribunal, 
on proof, in a controversy from which Congress excluded 
it, where questions of fact and not law are to be settled, 
the determination of which will show whether the mineral 
claimants are or are not to have patents. It asserts that 
such a situation exists without a claim, that whether the land 
tlieji became its property or no is a <|uestion not then deter- 
minable, but is to be settled by a tribunal which it has not 
chosen, before which it is not a party, and in which it may 
not lawfully appear and volunteer a controversy. Why 
should the T'nited States Land Office be conducting an 
enquiry whether the land should be conveyed to mineral 
applicants when it was already private propert_y, and when 
as between the company and such applicant they had no 
jurisdiction or authority whatever ? Why conduct a con- 
troversy as to patenting land when there was no " claim " 
to it. 

No doubt, if at the date of definite location and filing of 
its map. the land was free from mineral and other claims or 



rights, subsequent claimants of such land would have to 
sliow it was of a character or quality not granted before 
they could obtain title to it. Then the grant attached to 
all public land which was in fact of the quality and in the 
condition described ; thenceforth it was a war as to titles. 
No one could inaugurate a claim to land from an odd sec 
tion within the limits of the grant except he showed a 
right. It would not be sutiicient for him to show a " claim" 
inaugurated after the definite location of tlie road, but if 
at the date of definite location there existed not a right but 
a " claim " upon which a party was entitled to be heard by 
his proof and which in the United States Land Office was 
to be judicially determined according to the weight of the 
evidence, then and in that case it was such a " claim " as in 
the contemplation of the law excepted the land out of the 
grant, or rather it is not the land which is described- as 
granted. 

The question whether there is a right attached to a piece 
of land involves questions of law, and the question whether 
there is a claim to a piece of land is purely a question of 
fact, and does not involve questions of law. Here there 
were claimants making the claims. Their claims were of 
specific tracts of land under certain laws. Their claim in 
proper form, with due solemnity in the right forum, was 
recognized and accepted by the proper officers, who pro- 
ceeded to examine the questions of fact and law to deter- 
mine whether the claim, which, as a matter of fact existed, 
should be ripened into a right. It is argued because the 
claim was incapacitated from ripening into a right that 
therefore there was no claim at all. 

This grant to the company from July 2, ISB-t, to July 6, 
1882, asserted itself as a grant of a certain quantity of land 
per mile, without specific description of the tracts. On the 
6th day of July, 18S'2, at the point involved it asserted 
itself as to the particular and separate pieces of land to 



\yhich it then attached, ami thereafter it did not reassert 
itself to attach the grant to any specific piece of land within 
the primary limits of the grant. It attached July 6, 1882, 
or never. Congress did not intend to say to the railroad,. 
" Enter into this controversy with your claim, and which- 
ever proves the hetter claim shall take the land." 

The right of a railroad company under these grants up to 
the time of definite location and filing the map is aright to 
a quantity of land described and is not a right to specific 
tracts of land. (Kansas Pacific R. R. Co. vs. Dunmeyer, U. 
S. R. 63-t.) On this fact the United States proceeds, under its 
laws and without let or hindrance from the company, or 
service of papers on it, to grant its quartz and placer mines 
and other claims, and to enquire to what land the grant 
will attach when the map of definite location was filed, 
recognizing that ''up to that time the right of the company 
to no definite section or part of section is fixed " {Idem.} 
Filing the map of general route, "does not, like the filing 
the map of definite location, vest in the company aright to 
any specific piece of land. It establishes no claim to any 
particular section with an odd number." {Idem.) 

The case of Nexohall vs. Sanger, 92 U. S., 761, is in • 
exact conformity to the principles herein laid down. In 
that case the law granted lands in certain limits, excluding 
lands " claimed under a foreign grant." In this ease the 
law granted lands in certain limits, excluding lands not 
free from " claims," whether foreign or domestic. In this 
case the exception was wider than in that. In that case the 
lawyers plausibly argued that the claim must be a valid 
and lawful one or the land was not excepted from the grant, 
and they showed that it was not a valid claim, and not only 
that, they showed it was unlawful, and more than that, it 
was fraudulent and void. It had been concocted by forgers 
and perjurers who had been detected and their crimes ex- 
posed, and this, too, in a court of last resort. But the 



forgers were ])ressing tlieir elaini ami it was siih-judlce at 
the time of the definite location of the road. The question 
was clearly defined and the circumstances presented it 
sharply. In this case the mineral claimants at the date of 
detinite location of the road are accused of no turpitude. 
As to the quantity of gold in the land, which was the basis 
of their claim, there was not enough to justify their claim 
and it failed. The cases with this exception are parallel. 
As to the principle involved and the question presented, 
they are precisely alike, and call for the application of the 
same law. In that ease the court, to enlarge the grant to 
the company, declined to amend the law by inserting the 
word " lawful " or " valid " before the word " claim." And 
it held the simulated claim void, though it was exposed by 
proof, efficient to, except the land from the grant. 

It is clear that this land is not within the premises of the 
grant. To justify its recovery by the company it must be 
clearly within the description of lands granted. All pre- 
sumptions of fact and all ambiguities or uncertainties of 
the law are resolved against parties claiming under such 
grants. 

The contest of a defeated litigant is not unlawful ; but 
denunciation of this mineral claim as invalid or unlawful 
is of no avail. It was a "claim" existent July 6, 1882. It 
had been entertained in the United States Land Office by 
the proper officers charged with that duty, who were pro- 
ceeding to investigate its validity, either wrongfully or right- 
fully ; the records of the Land Office showed it, and it was 
upon this land at the moment of definite location. There 
is no aiithority to insert the word "lawful" or "valid" 
before the word " claim " to change the meaning of the 
statute and enlarge the grant, as was well decided in I^ew- 
hall vs. Sanger, siqjra. 

The claims of the mineral applicants were "lawful" — that 
is to say, the claims themselves were not in contravention or 



10 

contempt of the grant to the plaintiff or any law of the 
United States. If, l)y some disregard of the company's right, 
the land office had received a claim to this as agricultural 
land and given it a i)lace on its records, and a hearing in its 
tribunals, and such a claim had an existence on the day the 
line of the road was " definitel}' fixed" and the map filed, 
it would have been a " claim," it might 7iot have l)een 
''lawful," but it would seem the solid logic and commanding 
authority of JVeichall vs. Sanger must be overturned, to 
hold that such land would have gone to the company. 
That, however, would have been quite a different condition 
from the ease at bar. No discussion of this question would 
be instructive which did not clearly distinguish between a 
mineral and an agricultural claim. When the mineral 
applicants appear with their claims no suggestion, intimation 
or thought was contained therein that the grant to the 
railroad company did not remain intact and complete, they 
could not because of that grant be turned, unrelieved, away ; 
they showed a law whereby they affirmed this land belonged 
to them, and they were in the land office to prove it was 
not the quality of land granted to the railroad company and 
was of the quality permitted to be taken by them — nay, had 
been taken by them — and they were there to claim tlie 
patent therefor. They said : " We know the Government 
has made a grant of certain